Prosecution Final Memorandum

4TH JUSTICE MAHMOOD INTRA DEPARTMENTAL VIRTUAL MOOT COURT COMPETITION, 2022
4JMIMC/34
4TH JUSTICE MAHMOOD INTRA DEPARTMENTAL VIRTUAL MOOT COURT COMPETITION,

2022
IN THE COURT OF CHIEF JUDICIAL MAGISTRATE
VADODRA, GUJARAT
G.R. No. 27 of 2022
IN THE MATTER of
STATE OF GUJARAT…………………………………………………………………
Prosecution
v/s
SUNIL &
OTHERS………………………………………………………………………..Defence
SUBMITTED TO
MOOT COURT SOCIETY
WRITTEN SUBMISSION ON BEHALF OF PROSECUTION
MEMORIAL ON BEHALF OF PROSECUTION


TABLE OF CONTENTS
Page No.
LIST OF ABBREVIATIONS……………………………………………………………….
(iii)
INDEX OF AUTHORITIES………………………………………………………………...
(iv)
STATEMENT OF JURISDICTION………………………………………………………..
(vii)
STATEMENT OF FACTS………………………………………………………………...(viii)
STATEMENT OF ISSUES…………………………………………………………………..
(x)
SUMMARY OF ARGUMENTS……………………………………………………………
(xi)
CHARGES FRAMED……………………………………………………………………..(xiii)
ARGUMENTS ADVANCED
1. WHETHER THE ACCUSED SUNIL (A1), MECHANIC (A2), AND SAMEER (A3)
LIABLE FOR CRIMINAL CONSPIRACY UNDER SECTION 120B INDIAN PENAL
CODE
1860?........................................................................................................1
1.1 AGREE TO DO OR CAUSE TO BE DONE………………………………...
…2
1.2 THE AGREEMENT TO DO AN ‘ILLEGAL

ACT’…………………………….2
1.3 EACH PARTY OF CONSPIRACY LIABLE FOR THE ENTIRE

CONSPIRACY…..3
1.4 CONVICTION TO BE SUSTAINED FOR CRIMINAL CONSPIRACY ON

CIRCUMSTANTIAL EVIDENCE…………………………………………..3

(I)
2. WHETHER THE ACCUSED SUNIL (A1), MECHANIC (A2), AND SAMEER (A3)
LIABLE UNDER SECTION 354C, 354D, 509 OF THE INDIAN PENAL CODE
1860 AND SECTION 66E, AND 67A OF THE INFORMATION TECHNOLOGY
ACT
2000?..................................................................................................................6
2.1 A1, A2 & A3 LIABLE U/S 354C, 354D & 509 OF
IPC………………….6
2.1.1 For Voyeurism………………………………………………...…
6
2.1.2 For Stalking……………………………………………………...7
2.1.3 For Intruding Privacy of Victim and Outraging her
Modesty…….9
2.2 A1, A2 & A3 LIABLE U/S 66E & 67A OF IT ACT

2000………………10
2.2.1 For Violation of Privacy……………………………………...…
10
2.2.2 For Transmitting Sexually Explicit Material in Electronic

Form………………………………………………………………….11
3. WHETHER ACCUSED SUNIL (A1) ENTITLED FOR
BAIL?.................................13
PRAYER…………………………………………………………………………………..(xiv)

(II)
LIST OF ABBREVIATIONS
A1 Sunil
A2 Mechanic
A3 Sameer
r/w Read With
IPC Indian Penal Code
IT Information Technology
u/s Under Section
§ Section
AIR All India Reporter
SC Supreme Court
v/s Versus
Id Previous Citation
SCR Supreme Court Reporter
CriLJ Criminal Law Journal
Edn. Edition

(III)
Const. Constitution
Art. Article
INDEX OF AUTHORITIES
CASES
Sushil Suri v/s Central Bureau of Investigation, AIR 2011 SC 1713…………………...

………2
Pratapbhai Hamirbhai Solanke v/s State of Gujarat, 2012 (10) JT

286…………………………2
Bimbadhar Pradhan v/s State of Orissa, AIR 1956 SC 469…………………………………2,

4
Major EG Barsay v/s The State of Bombay, AIR 1961 SC

1762……………………………….3
Dalmia R K v. Delhi Administration, AIR 1962 SC

1821……………………………………...3

(IV)
Yash Pal Mital v/s State of Punjab, AIR 1977 SC

2433……………………………………….3
Raghubir Singh & Ors. v/s State of Bihar, AIR 1987 SC

149…………………………………..3
State v. Som Nath Thapa, AIR 1996 SC

1744………………………………………………….3
Abdul Kadar Saleh Mohomed & Ors. v/s State, (1963) 65 Bom LR
864……………………….3
Ram Narain v/s State of Uttar Pradesh, AIR 1973 SC 1188……………………………………

4
Gade Lakshmi Mangraju v State of A.P., AIR 2001 SC

2677………………………………….4
Hanumant Govind Nargundkar v State of M.P., AIR 1952 SC

343…………………………….4
Keshab Padhan v. State of Orissa, 1976 Cutt. LR (Cri) 236……………………………………

9
Aman Kumar v State of Haryana, AIR 2004 SC

1497………………………………………….9
Namdeo Dnyanaba Agarkar v State of Maharashtra, 2013 Cr Lj 3946 (BOM)

………………...9
Vidyadharan v State of Kerala, AIR 2004 SC 536: (2004) 1 SCC

215…………………………9
State of Punjab v Major Singh, AIR 1967 SC

63……………………………………………….9
Tarkeshwar Sahu v. State of Bihar, 2006 (8) SCC 560…………………………………………

9

(V )
Skipper Beverage Pvt. Ltd. v. State, 92 (2001) DLT

2017……………………………………..9
Inder Mohan Goswamy v. State of Uttaranchal and others, 2007 (4) JCC
2843………………....................................................................................................................9
Anuradha R Kshirsagar v State of Maharashtra, 1991 CR LJ

411……………………………...9
R v/s Hicklin, (1863) 3 QB 360,

371………………………………………………………….12
Jayendra Saraswati Swamigal v/s State of Tamil Nadu, AIR 2005 SC

716…………………….4
Badri Rai v/s State of Bihar, AIR 1958 SC

953………………………………………………...4
Justice K.S. Puttaswamy (Retd) v/s Union of India, MANU/SC/1604/2017 (Para 21)
………...6
Vishaka v State of Rajasthan, AIR 1997 SC

3011……………………………………………...8
Apparel Export Promotion Council v A.K. Chopra, AIR 1999 SC

625……………………….10
Emperor v/s Tarak Das Gupta, 1925 SCC OnLine Bom 28: ILR (1926) 50 Bom 246: AIR
1926 Bom
159……………………………………………………………………………………...10
Jaharlal Das v/s State of Orissa, 1991 AIR 1388: 1991 SCR (2)
298………………………….10
Hanumant v/s State of Madhya Pradesh, AIR 1952 SC 343, 1953 CriLJ 129, 1952 1 SCR
1091………………………......................................................................................................11
State of Uttar Pradesh v/s Ashok Kumar Srivastava, 1992 AIR 840, 1992 SCR (1)
37……….11

(VI)
Ranjit D. Udeshi v/s. State of Maharashtra, 1965 AIR 881, 1965 SCR (1)
65………………...12
Aveek Sarkar and Anr v. State of West Bengal and Ors., (2014) 4 SCC 257 : (2014) 2 SCC
(Cri) 291……………………………………………………………………………………...12
Manoj Dattatray Supekar v. State of Maharashtra, 2016 SCC OnLine Bom

15449…………..13
Anil Sharma v/s State of Himachal Pradesh, (1997) 3 Crimes 135 (HP)
……………………...13
Anand Ramdhani Chaurasia & Anr. v/s State of Maharashtra, 2019 SCC OnLine Bom :
(2021) 2 RCR (Cri) 97 (DB)
………………………………………………………………………….13
BOOKS
Halsbury’s Laws of England, 44 (4th edn.) Lexis Nexis 1997.
Ratanlal & Dhirajlal: Indian Penal Code, Lexis Nexis 2019.
Batuk Lal, The Law of Evidence, Central Law Agency.
KD Gaur, Textbook on Indian Penal Code 6th edn., Universal Law Publication.
RV Kelkar’s, Criminal Procedure 6th edn., EBC.
Apar Gupta: Commentary on Information Technology Act, 3rd edn., 2016.
LEGISLATIONS
The Indian Penal Code, 1860.
The Indian Evidence Act, 1872.
The Code of Criminal Procedure, 1973.
The Information Technology Act, 2000.
Criminal Law (Amendment) Act, 2013.

(VII)
The Constitution of India.
WEBSITES
https://www.scconline.com.nludelhi.remotexs.in/?login=true
https://www.manupatrafast.com.nludelhi.remotexs.in/
http://www.livelaw.in.nludelhi.remotexs.in/
http://www.indiastat.com.nludelhi.remotexs.in/
https://heinonline.org.nludelhi.remotexs.in/HOL/Welcome
http://www.jstor.org.nludelhi.remotexs.in/
https://advance.lexis.com.nludelhi.remotexs.in/firsttime?crid=67d51024-5d43-47fa-8559-
b808c63d7ace
STATEMENT OF JURISDICTION
The prosecution has approached the Hon’ble Court of Chief Judicial Magistrate in the
District Court of Vadodara under Section 177 of the Code of Criminal Procedure 1973 to take
cognizance of the matter and proceed further for the trail. The counsel for the Petitioners
most humbly and respectfully submits before the jurisdiction of this Hon’ble Court and
accepts that this Court has the power to adjudicate the present case.
The present memorandum sets forth the facts, contentions and arguments in the present case.

(VIII)
STATEMENT OF FACTS
1. Akansha is the executive manager of the company named K.S.
2. She purchased the latest model of television and got it installed in her bedroom.
3. After a week, her television was not receiving signal properly with along with the
sound problem.
4. She approached Sunil (Owner of T.V. shop).
5. A mechanic visited and adjusted the display and sound settings of T.V. by putting
some devices inside the T.V set.
6. After 7 months she received a letter on her doorstep where “Ms. Akansha I have an
eye on you” was written with blood.
7. Along with that letter some private photographs (i.e., while sleeping, changing her
clothes and half nudes) were sent.
8. She lodge a complaint to the police.
9. Investigation by police of Akansha’s bedroom was unresolved.
10. The cyber cell of police was involved to solve the mystery.

(IX)
11. One day, while she was driving, one speeding vehicle, came toward and crashed into
her car.
12. Akansha and the other driver both were critically injured.
13. After regaining consciousness she informed the police that the other person was Mr
Sunil (Owner of the shop).
14. The police found a camera installed inside her TV.
15. Police caught the mechanic, who told that he was instructed to install it by his boss
Mr Sunil.
16. Mr. Sunil was arrested and his cell phone was seized.
17. Mr Sunil sent Akansha’s photos to Sameer.
18. Sameer further sent Akansha’s photos to Anil.
19. Anil blocked on receiving such photos and did not send them further.
20. Charges framed against all accused.

(X )
STATEMENT OF ISSUES
1. WHETHER THE ACCUSED SUNIL (A1), MECHANIC (A2), AND SAMEER (A3) LIABLE
FOR CRIMINAL CONSPIRACY UNDER SECTION 120B INDIAN PENAL CODE 1860?
UNDER SECTION 354C, 354D, 509 OF THE INDIAN PENAL CODE 1860 AND
SECTION 66E, AND 67A OF THE INFORMATION TECHNOLOGY ACT 2000?
3. WHETHER ACCUSED SUNIL (A1) ENTITLED FOR BAIL?

(XI)
SUMMARY OF ARGUMENTS
The essential ingredient of the offence of “criminal conspiracy” is the agreement to commit
an offence. Mere proof of such an agreement is sufficient to establish criminal
conspiracy.The essence of the offence of conspiracy is the fact of combination by agreement.
The offence of conspiracy consists in the very agreement between two or more persons to
commit a criminal offence irrespective of further consideration whether or not the offences
have actually been committed. In the instant case, the chain of circumstantial evidence point
conclusively towards the existence of a conspiracy between the accused. The prosecution
submits for the common design between A1, A2 and A3. Since criminal conspiracy u/s 120A
of IPC is continuing offence A3 became the party to agreement by his conduct when he
further transmitted it to A4. Referring to the case laws mentioned above if the parties to the
criminal conspiracy have the knowledge of the object of the offence, they can be prosecuted
u/s 120B of IPC. But the conduct of A4 in blocking and not transmitting the images is the
direct evidence of the fact that Anil was not party to the conspiracy. Therefore, prosecution
humbly submits to this Hon’ble Court for conviction of A1, A2 and A3 u/s 120B of IPC.

(XII)
Right to Privacy has been declared as a Fundamental Right under Article 21 of the
Constitution. In the present matter, intrusion in private life of Akansha is clear from the facts
and dissemination of captured photos is also done by accused. The counsel also submits
before the court that accused A1, A2 & A3 is an offender under Section 354D of IPC for
stalking the victim and trying to foster an interaction with her. In the present matter, accused
is charged with section 67A of IT Act which is more precise about transmitting sexually
explicit material in electronic form. The prosecution relies on the Hicklin Test for
determining obscenity on the basis of Community Standards. But the facts make it clear that
photographs were of such nature (sleeping, changing clothes, half nude etc.) that could be
lascivious. Therefore, the prosecution requests this Hon’ble court, conviction of the accused
of transmitting the victim’s sexually explicit photographs.
The prosecution requests this Hon’ble court to deny the bail of A1. The charges framed
against the accused A1 are Section 354C, 354D, 509 r/w 120B of IPC, Section 66E & 67A
of The IT Act 2000. Relying on different case laws hereinafter argued in the argument
advanced section In the present matter, if the court thinks that there is lack of evidence, the
prosecution requests the Hon’ble court to put on remand the accused u/s 167(2) of Cr.P.C. in
order to further investigation and bring in light direct evidences before this court.

(XIII)
CHARGES FRAMED
Sunil (A1) Section 354C, 354D, 509 r/w 120B of IPC. Section 66E & 67A of
The IT Act 2000.
Mechanic (A2) Section 354C, 354D, 509 r/w 120B of IPC. Section 66E & 67A of
The IT Act 2000.
Sameer (A3) Section 354C, 354D, 509 r/w 120B of IPC. Section 66E & 67A of
The IT Act 2000.

(XIV)

(XV)
ARGUMENTS ADVANCED
Sunil hereinafter referred to as A1, i.e., Accused no. 1
Mechanic hereinafter referred to as A2, i.e., Accused no. 2
Sameer hereinafter referred to as A3, i.e., Accused no. 3
It is humbly contended before this Hon’ble Court that the accused are guilty of the offences
that they have been accused namely under the charges of-
a) Criminal Conspiracy,
b) Voyeurism,
c) Stalking,
d) Intruding and Violating Privacy of Woman,
e) Transmitting Obscene Material in Electronic Form,
f) Transmitting Sexually Explicit Material in Electronic Form.
Section 120A of the Indian Penal Code, 1860 defines “criminal conspiracy”. It states that-
120A. Definition of criminal conspiracy.-- When two or more persons agree to

do, or cause to be done,-
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a
criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall

amount to a criminal conspiracy unless some act besides the agreement is done
by one or more parties to such agreement in pursuance thereof.
Explanation.- It is immaterial whether the illegal act is the ultimate object of such
agreement, or is merely incidental to that object.

PAGE |1
1.1 AGREE TO DO OR CAUSE TO BE DONE
The essential ingredient of the offence of “criminal conspiracy” is the agreement to commit
an offence. Mere proof of such an agreement is sufficient to establish criminal conspiracy. 1
The essence of the offence of conspiracy is the fact of combination by agreement. The
agreement may be express or implied. The conspiracy arises and the offence is committed as
soon as the agreement is made and continues to be committed as long as the combination
persists, that is until the conspiracy agreement is terminated by the completion of its
performance or by abandonment or frustration or however it may be. Direct evidence to
prove conspiracy is rarely available and, therefore, the circumstances proved before, during
and after the occurrence have to be considered to decide about the complicity of the accused.2
The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the
execution of it. It is not enough that one or more persons pursued the same unlawful object at
the same time or in the same place.
It is necessary to show a consensus ad idem between all the members party to the criminal
conspiracy i.e., a consensus to the effect of an unlawful purpose. It is not, however, necessary
that each conspirator should have been in communication with every other.3
1.2 THE AGREEMENT TO DO AN ‘ILLEGAL ACT’
The offence of conspiracy consists in the very agreement between two or more persons to
commit a criminal offence irrespective of further consideration whether or not the offences
have actually been committed. The very fact of the conspiracy constitutes the offence and it is
immaterial whether anything has been done in pursuance of the unlawful agreement. 4 The
members of a conspiracy can all be held guilty of the offence of conspiracy to do illegal acts,
1
Sushil Suri v/s Central Bureau of Investigation, AIR 2011 SC 1713.
2
Pratapbhai Hamirbhai Solanke v/s State of Gujarat, 2012 (10) JT 286.
3
Halsbury’s Laws of England, 44 (4th edn.) Lexis Nexis 1997.
4
Bimbadhar Pradhan v/s State of Orissa, AIR 1956 SC 469.

PAGE |2
though for individual offences all of them may not be liable. 5 It is not necessary that each
member of the conspiracy must know all the details of the conspiracy.6
1.3 EACH PARTY OF CONSPIRACY LIABLE FOR THE ENTIRE CONSPIRACY
In order to constitute a single general conspiracy there must be a common design and a
common intention of all to work in furtherance of the common design. The steps adopted by
one or two of the conspirators without the knowledge of the others will not affect the
culpability of others when they are associated with the object of the conspiracy. 7 It is not
necessary that a person has to be a part of the conspiracy from start to finish. Conspirators
may appear and disappear from stage to stage in the course of the conspiracy.8
When the ultimate offence consists of a chain of actions, it would not be necessary for the
prosecution to establish, to bring home a charge of conspiracy, that each of the conspirators
had the knowledge of what the collaborator would do, so long as it is known that the
collaborator would put the goods and services to an unlawful use.9
1.4 CONVICTION TO BE SUSTAINED FOR CRIMINAL CONSPIRACY ON
CIRCUMSTANTIAL EVIDENCE
In almost every case conspiracies have to be inferred from the subsequent conduct of the
parties having regard to all the circumstances of the case.10 In considering the question
criminal conspiracy it is not always possible to give affirmative evidence about the date of
the formation of the conspiracy, about the persons who took part in the formation of the
conspiracy, about the object which the conspirators set before themselves as the object of the
conspiracy was to be carried out. All this is necessarily a matter of inference. The essence of
criminal conspiracy is an agreement to do an illegal act. Such an agreement can be proved
5
Major EG Barsay v/s The State of Bombay, AIR 1961 SC 1762.
6
Dalmia R K v. Delhi Administration, AIR 1962 SC 1821.
7
Yash Pal Mital v/s State of Punjab, AIR 1977 SC 2433.
8
Raghubir Singh & Ors. v/s State of Bihar, AIR 1987 SC 149.
9
State v. Som Nath Thapa, AIR 1996 SC 1744.
10
Abdul Kadar Saleh Mohomed & Ors. v/s State, (1963) 65 Bom LR 864.

PAGE |3
either by direct or by circumstantial evidence or by both. It is not necessary that there should
be express proof of the agreement; far from the acts and conduct of the parties the agreement
can be inferred.11 In case of conspiracy, the agreement between the conspirators cannot
generally be directly proved, but only inferred from the established facts of the case. 12 In
appreciating a case based on circumstantial evidence, one circumstance by itself may not
unerringly point to the guilt of the accused. It is the cumulative result of all the circumstances
which could matter.13 Thus, there must be a chain of evidence where no reasonable ground is
left for a conclusion which is relevant with the innocence of the accused and it must be such
as to show that, it is within all human possibility, the act must have been done by the
accused.14
Section 10 Things said or done by conspirator in reference to common design.

—Where there is reasonable ground to believe that two or more persons have
conspired together to commit an offence or an actionable wrong, anything said,
done or written by any one of such persons in reference to their common
intention, after the time when such intention was first entertained by any one of
them, is a relevant fact as against each of the persons believed to so conspiring,
as well for the purpose of proving the existence of the conspiracy as for the
purpose of showing that any such person was a party to it.15
If prima facie evidence of existence of a conspiracy is given and accepted, the evidence of
acts and statements made by anyone of the conspirators in furtherance of common object is
admissible against all; Jayendra Saraswati Swamigal v/s State of Tamil Nadu 16. Section 10
has been deliberately enacted in order to make acts and statements of co-conspirator
admissible against the whole body of conspirators, because of the nature of crime; Badri Rai
v/s State of Bihar17. The act of A1 giving device to A2 to install on television, act of A2 to
11
Ram Narain v/s State of Uttar Pradesh, AIR 1973 SC 1188.
12
Bimbadhar Pradhan v/s State of Orissa, AIR 1956 SC 469.
13
Gade Lakshmi Mangraju v State of A.P., AIR 2001 SC 2677.
14
Hanumant Govind Nargundkar v State of M.P., AIR 1952 SC 343.
15
The Indian Evidence Act, 1872, § 10.
16
AIR 2005 SC 716.
17
AIR 1958 SC 953.

PAGE |4
install device and act of A1 to transmit photograph to A3 and act of A3 to transmit

photograph to A4 clearly portrays a common design among the conspirators.
In the instant case, the chain of circumstantial evidence point conclusively towards the
existence of a conspiracy between the accused. The prosecution submits for the common
design between A1, A2 and A3. Since criminal conspiracy u/s 120A of IPC is continuing
offence A3 became the party to agreement by his conduct when he further transmitted it to
A4. Referring to the case laws mentioned above if the parties to the criminal conspiracy have
the knowledge of the object of the offence, they can be prosecuted u/s 120B of IPC. But the
conduct of A4 in blocking and not transmitting the images is the direct evidence of the fact
that Anil was not party to the conspiracy. Therefore, prosecution humbly submits to this
Hon’ble Court for conviction of A1, A2 and A3 u/s 120B of IPC.

PAGE |5
Right to Privacy18 has been declared as a Fundamental Right under Article 21 of the
Constitution of India in landmark judgement of Justice K.S. Puttaswamy (Retd) v/s Union of
India19 wherein it was held that,
“Dignity cannot exist without privacy. Both reside within the inalienable values of
life, liberty and freedom which the Constitution has recognized. Privacy is the
ultimate expression of the sanctity of the individual. It is a constitutional value
which straddles across the spectrum of fundamental rights and protects for the
individual a zone of choice and self-determination”.
These intrusions may be physical or visual and may take any of several forms including
peeping over one’s shoulder to eavesdropping directly or through instruments, devices or
technological aids.20 Capturing photos which include content of Akansha’s private life
including different poses while sleeping, changing her clothes etc. without her consent 21 can
be clearly interpreted as breach of dignity as well as privacy of an individual and against the
Constitution.
2.1 A1, A2 & A3 LIABLE U/S 354C, 354D & 509 OF IPC
2.1.1 For Voyeurism
“Any man who watches, or captures the image of a woman engaging in a private
act in circumstances where she would usually have the expectation of not being
observed either by the perpetrator or by any other person at the behest of the
perpetrator or disseminates such image shall be punished on first conviction with
imprisonment of either description for a term which shall not be less than one
year…”22
18
INDIA CONST. Art. 21.
19
MANU/SC/1604/2017 (Para 21).
20
Id.
21
Factual Sheet (Para 2).
22
IPC, § 354C.

PAGE |6
The act done by A1 while capturing the photos fulfils the criteria of committing the offence
of voyeurism u/s 354C. Also, in the Explanation 1 to Section 354C it states that-
“For the purpose of this section, “private act” includes an act of watching carried out in a
place which, in the circumstances, or the victim is doing a sexual act that is not of a kind
ordinarily done in public.”23
Section 354C of IPC was inserted by an Amendment 24 based on the suggestions of the Justice
JS Verma Committee, constituted in the aftermath of the December 2012 Nirbhaya rape
incident. During the deliberations, the Committee was surprised to find out that offences such
as stalking, voyeurism, ‘eve-teasing’, etc., are perceived as ‘minor’ offences, even though
they are capable of depriving not only a girl child but frail children of their right to education
and their freedom of expression and movement.25
In the present matter, intrusion in private life of Akansha is clear from the facts 26 and
dissemination of captured photos is also done by accused 27. It can be clearly inferred, that the
accused is alleged to have indulged in voyeurism while capturing acts of Akansha being
engaged in “different acts”28 which a reasonable person would not do in public. Privacy, thus,
constitutes the basic, irreducible condition necessary for the exercise of personal liberty and
freedoms guaranteed by the Constitution. It is the inarticulate major premise in Part III of the
Constitution.29
2.1.2 For Stalking

In the present case Section 354D of IPC is also attracted. It states-
23
IPC, § 354C, Exp 1.
24
Criminal Law (Amendment) Act, 2013, § 7, No. 13, Acts of Parliament, 2013 (India).
25
Ratanlal & Dhirajlal: Indian Penal Code, Ch XIV Lexis Nexis 2019.
26
27
28
Supra note 17 at 4.
29
Supra note 1 at 2.

PAGE |7
Any man who- “…monitors the use by a woman of the internet, email or any other
form of electronic communication, commits the offence of stalking…”30
The counsel also submits before the court that accused A1, A2 & A3 is an offender under
Section 354D of IPC for stalking the victim and trying to foster an interaction with her. The
definition of the offence of stalking u/s 354D include “…any other form of electronic
communication”31. In the present case it is clear from the facts that Akansha received letters 32
with her private photograph that were captured through device installed in her television. This
means that accused were indulged in stalking her through that electronic device. Furthermore,
the counsel would like to mention that the victim was being increasingly troubled by the
behaviour of accused who was repeatedly sending her envelopes with her private photograph.
The accused expressed his lust for Akansha by writing, “Ms. Akansha I have an eye on
you”33 and further he wrote “You would have seen the photographs. I am deeply and madly in
love with you and can kill anyone for you” 34. The victim was extremely terrified by these
letters and subsequently reported police. The victim’s approach to her colleague and then to
police makes it clear that she had non-willingness to show interest towards the accused. In
Vishaka v State of Rajasthan35, the Supreme Court has laid down certain guidelines on sexual
harassment. Stalking is a step before sexual harassment. Also, relying on the suggestions of
the Justice JS Verma Committee, constituted in the aftermath of the December 2012
Nirbhaya rape incident this court has to take preventive measures in order to stop accused to
commit further offences.36
It is therefore established that the accused was an insane stalker similar to roadside Romeo
who would percolate along some incredible scales to foster personal interaction with the
victim and intrude in her personal space.
30
IPC, § 354D (1) (ii).
31
Id.
32
33
Factual Sheet.
34
Id.
35
AIR 1997 SC 3011.
36
Supra note 21 at 6.

PAGE |8
2.1.3 For Intruding Privacy of Victim and Outraging her Modesty
The counsel also submits before this Hon’ble Court that the acts committed by A1, A2 & A3
in pursuance of his lust for Akansha had clearly outraged her modesty as per the provisions of
Section 509 of the IPC. The section states-
“Whoever, intending to insult the modesty of any woman, utters any words, makes
any sound or gesture, or exhibits any object, intending that such word or sound
shall be heard, or that such gesture or object shall be seen, by such woman, or
intrudes upon the privacy of such woman, [shall be punished with simple
imprisonment for a term which may extend to three years, and also with fine].”37
Here, the word, “…intrudes upon privacy of such woman…” fits in the present case and
attracts section 509. The accused A1, A2 & A3 have outraged the modesty of the victim by
transmitting the photo to each other. In order to attract section 509, outraging modesty of
woman needs to be proved. The test of outrage of modesty is whether a reasonable man will
think that the act of the offender was intended to or was known to be likely to outrage the
modesty of a woman.38 Ergo, even mere knowledge that a woman’s modesty will be outraged
will prove a person guilty san any deliberate intention.39 The existence of such knowledge can
be determined from various incidents in which and upon whom the offense is committed. 40
The Supreme Court, in a case, observed that the offence under this section is concerned with
the intention to outrage the modesty of women. It held, “The culpable intention of the
accused is the crux of the matter. The reaction of the woman is very relevant, but its absence
is not always decisive. Modesty is an attribute associated with female human beings as a
class.”41 Any sort of assault on a woman’s modesty, be it by words, deed, touch or look needs
stricture. The court, in a case, made the respondent liable under Sec. 509 for calling the
petitioner a characterless lady.42 It was held that abusive language in reference to women
would constitute an offence.43 The counsel would request the bench to refer to facts wherein
37
IPC, § 509.
38
Keshab Padhan v. State of Orissa, 1976 Cutt. LR (Cri) 236.
39
Aman Kumar v State of Haryana, AIR 2004 SC 1497.
40
Namdeo Dnyanaba Agarkar v State of Maharashtra, 2013 Cr Lj 3946 (BOM); Vidyadharan v State of Kerala,
AIR 2004 SC 536: (2004) 1 SCC 215; State of Punjab v Major Singh, AIR 1967 SC 63.
41
Tarkeshwar Sahu v. State of Bihar, 2006 (8) SCC 560.
42
Skipper Beverage Pvt. Ltd. v. State, 92 (2001) DLT 2017; Inder Mohan Goswamy v. state of Uttaranchal and
others, 2007 (4) JCC 2843.
43
Anuradha R Kshirsagar v State of Maharashtra 1991 CR LJ 411.

PAGE |9
the accused sent threatening letters to victim that can outrage her modesty. 44 The court
observed that the offense relating to modesty under the section cannot be treated as trivial.
Mere idea about the fact that the action would outrage the modesty is sufficient to constitute
an offense here. It may be without any deliberate intention. 45 Also, relying on Emperor v/s
Tarak Das Gupta46; “The sending by post of a letter containing indecent
overtures to a woman can amount to an offence punishable under section 509 of the Penal
Code, 1860”. Therefore, it can be concluded that A1, A2 & A3 have committed an offence
under Sec. 509 IPC.
2.2 A1, A2 & A3 LIABLE U/S 66E & 67A OF IT ACT 2000.
2.2.1 For Violation of Privacy
Punishment for violation of privacy. -Whoever, intentionally or knowingly

captures, publishes or transmits the image of a private area of any person without
his or her consent, under circumstances violating the privacy of that person, shall
be punished with imprisonment which may extend to three years or with fine not
exceeding two lakh rupees, or with both.47
The counsel hereinbefore has proved beyond reasonable doubt that accused A1, A2 & A3
violated the privacy of the victim through electronic medium. The accused transmitted the
private photograph of the victim. The provision of section 66E is clearly attracted in the
present case by the bare reading of the section.
Referring to Jaharlal Das v/s State of Orissa48 where the Hon’ble Supreme Court convicted
the accused u/s 66E of IT Act on the basis of circumstantial evidence. In the present case the
conviction u/s 66E can be sustained on the judicial precedent established in Jaharlal Das49
case. The Hon’ble Supreme Court decided that; when we take circumstantial evidence as the
evidence of an offence, it must satisfy three conditions:
44
Supra 29 & 30.
45
Supra 31; Apparel Export Promotion Council v A.K. Chopra AIR 1999 SC 625.
46
1925 SCC OnLine Bom 28: ILR (1926) 50 Bom 246: AIR 1926 Bom 159.
47
Information Technology Act, 2000, § 66E, No. 21, Acts of Parliament, 2000 (India).
48
1991 AIR 1388: 1991 SCR (2) 298.
49
Id.

P A G E | 10
i. While proving the guilt of an accused, the circumstances that led towards his guilt
need to be established beyond reasonable doubt.
ii. The circumstances should have a definite tendency to prove the guilt of an accused.
iii. Take all the circumstances cumulatively and they should form a chain of that offence
and there should be no chance to escape from the conclusion.
The abovementioned three conditions are proven by the prosecution beyond a reasonable
doubt. Similarly, in the case of Hanumant v/s State of Madhya Pradesh50, and State of Uttar
Pradesh v/s Ashok Kumar Srivastava51, the court said that the chain of circumstances fully
established and all the facts should be constituted only with the hypothesis of the guilt of an
accused. Therefore, conviction u/s 66E must be sustained.
2.2.2 For Transmitting Sexually Explicit Material in Electronic Form
Going beyond s. 67 which merely prohibited material which could be considered obscene, s.
67A which has been inserted by the IT Amendment Act, 2008 expressly prohibits the
publication or the transmission of pornographic content. Though pornographic content as
would have fell as species of content prohibited under s. 67, there seems to have been a push
towards expressly prohibiting pornography. The ingredients for an offence under section
67A, are,
(i) publication or transmission; or
(ii) causing to be published or transmitted;
(iii) any electronic message;
(iv) which contains sexually explicit act or conduct.
Section 67 of the IT Act covers similar offences as IPC Section 292. In the case of Ranjit D.
Udeshi v/s. State of Maharashtra 52, the court adopted the Hicklin Test 53 which states that
“obscenity will be judged upon “whether the material has the tendency to deprave and corrupt
those minds that are open to such immoral influences, and into whose hands a publication of
50
AIR 1952 SC 343, 1953 CriLJ 129, 1952 1 SCR 1091.
51
1992 AIR 840, 1992 SCR (1) 37.
52
1965 AIR 881, 1965 SCR (1) 65.
53
R v/s Hicklin, (1863) 3 QB 360, 371.

P A G E | 11
this sort may fall and the material in such cases was to be looked in isolation and out of the
context of the work it was a part of.” The drawback of this test was that it failed to adhere
with the language of Section 292 which mandates the obscene material to be taken as a whole
and read in context of the work it is a part of. In a landmark case of Aveek Sarkar and Anr v.
State of West Bengal and Ors.54, it scrapped the parochial ‘Hicklin Test‘ for determining
‘obscenity’ and set the ‘Community Standards Test’ as the basis of the determination. “It said
that an act can be considered obscene and a charge of obscenity can be brought only if it
contains matter that arouses lustful and depraved thoughts and not merely for if the content is
rude.”
In the present matter, accused is charged with section 67A of IT Act which is more precise
about transmitting sexually explicit material in electronic form. The prosecution relies on the
Hicklin Test for determining obscenity on the basis of Community Standards. But the facts
make it clear that photographs were of such nature (sleeping, changing clothes, half nude
etc.) that could be lascivious.55 Such photographs can lead further lead to create lust against
victim as far as it is transmitted. Therefore, the prosecution requests this Hon’ble court,
conviction of the accused of transmitting the victim’s sexually explicit photographs.
The prosecution requests this Hon’ble court to deny the bail of A1. The charges framed
against the accused A1 are Section 354C, 354D, 509 r/w 120B of IPC, Section 66E & 67A
of The IT Act 2000. Relying on Manoj Dattatray Supekar v. State of Maharashtra56; wherein
section 67A of the IT Act was considered to be a non-bailable offence. Further relying on
54
(2014) 4 SCC 257 : (2014) 2 SCC (Cri) 291.
55
56
2016 SCC OnLine Bom 15449.

P A G E | 12
Anil Sharma v/s State of Himachal Pradesh 57; in the absence of direct evidence the accused
can defeat the proper investigation and fair trial if released on bail.
Relying on Anand Ramdhani Chaurasia & Anr. v/s State of Maharashtra58; the Hon’ble
Supreme Court held that, “There is no bar to a trial or conviction of an offender under two
different enactments, but the bar is only to the punishment of the offender twice for the
offence.” The prosecution submits that the accused can be tried for the offence committed
under IPC and IT Act consecutively. This is not against the rule of double jeopardy enshrined
under Article 20(2) of the Constitution of India. Double jeopardy is where a person cannot be
punished for same offence twice or for offence committed in the same transaction in a single
trial. But the precedent regarding prosecution of offender in two enactments is established by
the Hon’ble Supreme Court.59
In the present matter, if the court thinks that there is lack of evidence, the prosecution
requests the Hon’ble court to put on remand the accused u/s 167(2) of Cr.P.C. in order to
further investigation and bring in light direct evidences before this court.
57
(1997) 3 Crimes 135 (HP).
58
2019 SCC OnLine Bom : (2021) 2 RCR (Cri) 97 (DB).
59
Id.

P A G E | 13
PRAYER
For the foregoing reasons, the prosecution respectfully requests this Court to declare-
A. A1(Sunil), A2(Mechanic) & A3(Sameer) liable u/s 354C, 354D & 509 r/w
120B of Indian Penal Code 1860.
B. A1(Sunil), A2(Mechanic) & A3(Sameer) liable u/s 66E, 67 & 67A of

Information Technology Act 2000 to run consecutively with charges under
IPC upon the discretion of this Hon’ble Court.
C. Bail of accused A1 to be denied.
And pass such order keeping in view the principle of equity and good conscience.
Respectfully Submitted
COUNSEL FOR PROSECUTION

(XIV)

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4TH JUSTICE MAHMOOD INTRA DEPARTMENTAL VIRTUAL MOOT COURT COMPETITION, 2022

4TH JUSTICE MAHMOOD INTRA DEPARTMENTAL VIRTUAL MOOT COURT COMPETITION,

IN THE COURT OF CHIEF JUDICIAL MAGISTRATE

G.R. No. 27 of 2022

MOOT COURT SOCIETY

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

MEMORIAL ON BEHALF OF PROSECUTION

MEMORIAL ON BEHALF OF PROSECUTION

1.2 THE AGREEMENT TO DO AN ‘ILLEGAL

1.3 EACH PARTY OF CONSPIRACY LIABLE FOR THE ENTIRE

1.4 CONVICTION TO BE SUSTAINED FOR CRIMINAL CONSPIRACY ON

MEMORIAL ON BEHALF OF PROSECUTION

2.2 A1, A2 & A3 LIABLE U/S 66E & 67A OF IT ACT

2.2.2 For Transmitting Sexually Explicit Material in Electronic

3. WHETHER ACCUSED SUNIL (A1) ENTITLED FOR

MEMORIAL ON BEHALF OF PROSECUTION

MEMORIAL ON BEHALF OF PROSECUTION

Sushil Suri v/s Central Bureau of Investigation, AIR 2011 SC 1713…………………...

Pratapbhai Hamirbhai Solanke v/s State of Gujarat, 2012 (10) JT

Bimbadhar Pradhan v/s State of Orissa, AIR 1956 SC 469…………………………………2,

Major EG Barsay v/s The State of Bombay, AIR 1961 SC

Dalmia R K v. Delhi Administration, AIR 1962 SC

MEMORIAL ON BEHALF OF PROSECUTION

Yash Pal Mital v/s State of Punjab, AIR 1977 SC

Raghubir Singh & Ors. v/s State of Bihar, AIR 1987 SC

State v. Som Nath Thapa, AIR 1996 SC

Ram Narain v/s State of Uttar Pradesh, AIR 1973 SC 1188……………………………………

Gade Lakshmi Mangraju v State of A.P., AIR 2001 SC

Hanumant Govind Nargundkar v State of M.P., AIR 1952 SC

Keshab Padhan v. State of Orissa, 1976 Cutt. LR (Cri) 236……………………………………

Aman Kumar v State of Haryana, AIR 2004 SC

Namdeo Dnyanaba Agarkar v State of Maharashtra, 2013 Cr Lj 3946 (BOM)

Vidyadharan v State of Kerala, AIR 2004 SC 536: (2004) 1 SCC

State of Punjab v Major Singh, AIR 1967 SC

Tarkeshwar Sahu v. State of Bihar, 2006 (8) SCC 560…………………………………………

MEMORIAL ON BEHALF OF PROSECUTION

Skipper Beverage Pvt. Ltd. v. State, 92 (2001) DLT

Anuradha R Kshirsagar v State of Maharashtra, 1991 CR LJ

R v/s Hicklin, (1863) 3 QB 360,

Jayendra Saraswati Swamigal v/s State of Tamil Nadu, AIR 2005 SC

Badri Rai v/s State of Bihar, AIR 1958 SC

Vishaka v State of Rajasthan, AIR 1997 SC

Apparel Export Promotion Council v A.K. Chopra, AIR 1999 SC

MEMORIAL ON BEHALF OF PROSECUTION

Manoj Dattatray Supekar v. State of Maharashtra, 2016 SCC OnLine Bom

Halsbury’s Laws of England, 44 (4th edn.) Lexis Nexis 1997.

Ratanlal & Dhirajlal: Indian Penal Code, Lexis Nexis 2019.

Batuk Lal, The Law of Evidence, Central Law Agency.

RV Kelkar’s, Criminal Procedure 6th edn., EBC.

Apar Gupta: Commentary on Information Technology Act, 3rd edn., 2016.

The Indian Penal Code, 1860.

The Indian Evidence Act, 1872.

The Code of Criminal Procedure, 1973.

The Information Technology Act, 2000.

Criminal Law (Amendment) Act, 2013.

The Constitution of India.

MEMORIAL ON BEHALF OF PROSECUTION

1. Akansha is the executive manager of the company named K.S.

4. She approached Sunil (Owner of T.V. shop).

8. She lodge a complaint to the police.

9. Investigation by police of Akansha’s bedroom was unresolved.

MEMORIAL ON BEHALF OF PROSECUTION

14. The police found a camera installed inside her TV.

17. Mr Sunil sent Akansha’s photos to Sameer.