TC-41R

RGNUL 12TH NATIONAL MOOT COMPETITION, 2024

BEFORE THE HON’BLE SUPREME COURT, ARKA SANTORIN

APPEAL No /2022

VICKY SARKAAR .................................................................... (APPELLANT)

V.

STATE OF ARKADAPPA ........................................................... (RESPONDENT)

SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUTION

OF ARKA SANTORIN CHALLENGING THE DISMISSAL

UPON SUBMISSION TO THE HON’BLE SUPREME COURT JUDGE

MEMORANDUM ON BEHALF OF THE RESPONDENT

 Table of content

S PARTICULARS PAGE No.

No.
1 LIST OF ABBREVATIONS 2

2 INDEX OF AUTHORITY 3-5

3 STATEMENT OF JURISDICTION 6

4 STATEMENT OF FACTS 7-8

5 ISSUE RAISED 9

6 SUMMARY OF ARGUMENTS 10-11

7 ARGUMENT ADVANCED 12-31

8 PRAYER CLAUSE 32

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 LIST OF ABBREVATION

AIR All India Reporter

All Allahabad High Court

ANA Arka Sakshya Adhiniyam

ANS Arka Nyaya Sanhita

ANSS Arka Nagrik Suraksha Sanhita

Cal Calcutta High Court

Cri LJ / Cr LJ Criminal Law Journal

Del Delhi High Court

Ed. Edition

p. Page No.

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

Sec Section

TIP Test Identification Parade

V. Versus

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MEMORANDUM ON BEHALF OF RESPONDENT
 INDEX OF AUTHORITIES

 CASES REFFERED

S CASE TITLE CITATION AT PAGE

No.
1 Amit Kumar v. The State Of CIVIL W.P.5611 OF 2022 25
Bihar & Ors
2 Anwar Hussain v. State Of (1982) 1 SCC 491 19
U.P
3 Ashok Kumar Thakur v. W.P (CIVIL)265 OF 2006 26
Union Of India & Ors
4 Balwant Singh And Ors v. AIR 1987 SC 1080 17
State Of Punjab
5 Budhasen v. State Of A.P (1970) AIR1321 12
6 Collector Of Customs v. AIR 1958 CAL 682 22
Calcutta Motor And Cycle Co
7 Dalbir Singh v. State Of (2008) 11 SCC 425 18,19
Haryana
8 Dolaalias Dolagobinda Pradhan v. AIR 2018 SC 4020 19
State Of Odisha
9 Dr. Rajesh Talwar v. Cbi (2012) 4 SCC 245 31
10 Gurcharan Singh v. State (1972) 2 SCC 749 17
Of Haryana
11 Hamdard Dawakhana v. Union Of 1960 (2) SCR 671 30
India
12 Hinsa Virodhak Sangh v. APPEAL (CIVIL) 5469 25
Mirzapur Moti KureshJamat And
Ors.
13 Holt v. United States (1910) 218 US 245 21
14 Indian Express Newspapers 1986 AIR 515 28
(Bombay) (P) Ltd. v. Union
Of India
16 Inspector Of Police T.N. v. AIR 2009 SC 1012 18
Palanisamy @ Selvan
17 John R. Manson Commissioner Of 432 U.S. 98 (1977) 15
Correction of connecticut
v. Nowell A. Brathwaite

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MEMORANDUM ON BEHALF OF RESPONDENT
18 K.S. Puttaswamy v. Union (2017) 10 SCC 1 20
Of India
19 Karnel Singh v. State Of 1995 AIR 2472 16
M.P
20 Kishnia & Ors v. State Of (2004) 11 SCC 567 18
Rajasthan
21 M.P. Sharma v. Satish Chandra AIR 1954 SC 300 20,21,23

22 Malkhansingh v. State Of M.P (2003) 5 SCC 746 14

23 Md .Kalam v. State Of Rajasthan 2008(11) SCC 352 16

24 Mohan Singh v. State Of AIR 2009 SC 1012 18

Bihar
25 Mohd. Imran Khan v. State 2011(10) SCC 192 16
Government (Nct Of Delhi)
26 Mukesh Singh v. The State AIR2023 SC 4097 23
(Nct Of Delhi)
27 Peare Lal Show v. The State AIR 1961 CAL 531 21,23

28 People v. Swallow 165 NEW YORK SUPP. 915 22

15 R. Rajagopal v. State Of T.N 1995 AIR 264 28
29 Rajendra Sail v. Madhya 2005 AIR SC 2473 29
Pradesh High Court BarAssociation
And Others
30 Rajesh v. State Of Haryana (2021) 1 SCC 118 13
31 Rajguru Mahapitra v. State Of (1985) 2 CR. L. C. 486 17
Orissa
32 Re: Harijai Singh And Anr. v. (1996) 6 SCC 466 30
In Re: Vijay Kumar
33 Rex v. Christie (1914) A. C. 545 (551) (E):- 23
34 Romesh Thapar v. State Of 1950 SCR 594 30
Madras
35 Sadashiv Ramrao Hadbe v. (2006) 10 SCC 92 14
State Of Maharashtra
36 Saha Alam Miah v. State Of (2014) 2 TLR 381 19
Tripura
37 Santosh Kumar Singh v. Cbi C.A NO.87 OF 2007 31
38 Shamim Rehmaney v. Zinat Kausar 1971 CRL.L.J. 1586 29
Dehalvi And Other
39 Sheo Shankar Singh v. State Of 2011 (3) SCC 654 16
Jharkhand

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MEMORANDUM ON BEHALF OF RESPONDENT
 40 Siddharth Vasghish @Manu Sharma (2010) SC 1 30
v. Nct Delhi

41 State Of Bombay v. Kathi Kalu 1961 AIR 1808 27

Oghad
42 State Of Madras v. V.G. Rao 1952 AIR 196 26
43 State Of Maharashtra v. 1990 AIR 658 16
Chandraprakash Kewalchand Jain

44 State Of West Bengal v. 1952 AIR 75 26

Anwar Ali Sarkar
45 State v. Ah Chuey (1879) 33 AM RE 530 22
46 Warden v. Archie Nathaniel Biggers 409 U.S. 188 (1972) 15

 WEBSITES

WWW.LEGALSERVICES.COM

WWW.INDIANKANOON.COM

WWW.IPLEADER.COM

WWW.LAWBITES.COM

WWW.LAWOCTOPUS.COM

WWW.LIVELAW.COM

WWW.LEXIS.COM

WWW.PATHLEGAL.COM

WWW.MANUPATRA.COM

 BOOKS REFFERED

1. KELKAR, R.V. CRIMINAL PROCEDURE CODE, (5TH ED. 2011)

2. LAL, BATUK, THE LAW OF EVIDENCE, (18'' ED. 2010)
3. MISHRA, SN. THE CODE OF CRIMINAL PROCEDURE. ALLAHABAD LAW
AGENCY
4. MP JAIN , CONSTITUTION OF ARKA SANTORIN, LEXIS NEXIS,(8*ED)
5. RATANLAL AND DHIRAILAL, THE INDIAN PENAL CODE, 33RD ED.(2011)
)

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MEMORANDUM ON BEHALF OF RESPONDENT
 STATEMENT OF JURISDICTION

The respondent have the honour to submit before the Hon’ble supreme court of Arka Santorin,
the memorandum for the respondent in response to an appeal filed by Appellant under article 136
of the constitution of Arka Santorin, 1950.

Article 136 read as: 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 ororder in any cause or matter passed or made by any court ortribunal in
the territory of India.
2. Nothing in clause (1) shall apply to any judgment, determination, sentence or
order passed or made by any court or tribunal constituted by or under any law
relatingto the armed force.

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MEMORANDUM ON BEHALF OF RESPONDENT
 STATEMENT OF FACTS

1. The Republic of Arka Santorin, a South Asian country, is a union of 28 states. It has a
written Constitution and a federal democratic pattern of government. Arka Santorin, being
one of the largest democratic countries in the world, has signed and ratified most of the
international human rights instruments.
2. The Republic of Arka Santorin is at the forefront of the protection of human rights. The
Constitution of Arka Santorin guarantees most of the basic human rights as fundamental
rights. The judiciary in Arka Santorin also plays an active role in this field and incorporates
several human rights through the interpretation of different constitutional provisions and
has assigned many of these rights the status of a fundamental right.
3. The incidents of sexual abuse are on the rise in the country of Arka Santorin. Hence, the
Central Government has introduced several amendments to their criminal laws in the year
2013. Recently, the century-old criminal major laws were replaced with updated provisions
in the name of Arka Nyaya Sanhita; Arka Nagarik Suraksha Sanhita; and Arka Sakshya
Adhiniyam.
4. Mr. Mohan Sharma and his wife Sakuntala Devi live in the village of Arkepur, Santorin
District, State of Arkadappa with their two daughters, Ashraya and Anugraha. Mohan
Sharma is running a provisional store near the bus stand of Arkepur. Miss Ashraya, the
eldest daughter is 21 years old and has interest in studies. However, she lost her vision due
to Microphthalmia. Sakuntala Devi is a housewife and she is taking care of her daughter
Ashraya and helping in her studies. As a result, Ashraya has graduated successfully.
Though Ashraya is not able to see she can distinguish and identify persons by hearing their
voices.
5. On 10th August 2022, Mohan Sharma went to his shop in the morning. The younger
daughter Anugraha, went to attend her school. By 11.00 a.m., Sakuntala Devi went to a
nearby village to attend a religious ceremony. At about 1.00 p.m., Sakuntala Devi returned
home and when she came near to Ashraya’s room, she found that somebody had broken the
door lock and entered inside. Sakuntala Devi rushed into the room of Ashraya, and hearing
the noise, Ashraya started crying. From the condition of the room, Sakuntala Devi could
feel that somebody had entered the room. After a few minutes of crying Ashraya explained
to her mother that a boy had entered her room and sexually abused her.
6. From the explanation of Ashraya, Sakuntala Devi understood that Ashraya was raped and
it was committed by a boy named Vicky Sarkar who lived in the neighbourhood. Vicky is

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 the son of Mr. Madura Sarkar, who is an MLA and is about to be inducted as a minister in
the State of Arkadappa. Vicky and Ashraya were childhood friends as they had studied in
the same school till 5th class. Afterwards, both of them had studied in different institutions.
7. On receiving the information about the incident, the police officer reached the house of
Mohan Sharma and took the first information statement from the victim. The victim also
had to undergo a medical examination and the examination report supports the statement
of the victim that there was forced sexual intercourse. However, there was no material
evidence like the presence of semen, any other fluid, or hairs, etc. to suggest towards the
accused. Moreover, there were no physical injuries found in the body to suggest resistance
from the side of the victim.
8. Based on the statements of Ashraya and Sakuntala Devi, the investigation officer made a
preliminary investigation and subsequently arrested Vicky on 12th August 2022. Before
the arrest, the police filed an application to the Magistrate to conduct a test identification
parade, in which based on the voice and touch, the victim identified Vicky. The
investigating officer has also collected measurements from the accused based on the
procedure laid down in the appropriate laws and rules.
9. Subsequently, during the trial, the defence questioned the legality of the test identification
parade conducted by the police and also questioned the admissibility of its result as
evidence. However, the trial court convicted the accused for a term of 14 years
imprisonment.
10. The said conviction was challenged by the accused in the High Court of Arkadappa. The
appellant challenged the admissibility of the evidence collected through the test
identification parade and also challenged the legality of the law permitting the police officer
to collect measurements from an accused.
11. During the pendency of the said appeal, the appellant preferred another petition to the
Hon’ble High Court to issue an order thereby prohibiting the publication of news and stories
about the said incident of alleged rape. The petitioners argued that, the publication of
exaggerated news and stories by different media including online media and social media
platforms would vitiate the trial. However, both the appeal and the petition were dismissed
by the Hon’ble High Court of Arkadappa and the High Court reaffirmed the trial court’s
judgment. Aggrieved by the dismissals, the accused filed two appeals to the Hon’ble
Supreme Court of Arka Santorin.
12. The Hon’ble Supreme Court of Arka Santorin for the sake of convenience, decided to hear
both petitions on the same day.

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 ISSUES RAISED:-

A. Whether the evidence collected through the test identification parade, in this case, is
admissible as valid evidence?
B. Whether the conduct of a test identification parade is a violation of the fundamental
rights of the accused?
C. Whether the Section 3 of the Criminal Procedure (Identification) Act, 2022 is
constitutionally valid?
D. Whether the issuance of a direction to refrain from publishing details of a criminal
case and stories about the accused is constitutionally permissible?

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 SUMMARY OF ARGUMENTS

A. Whether the evidence collected through the test identification parade, in this case, is
admissible as valid evidence?
It is submitted before this court that the evidence collected through Test Identification
Parade (afterward referred as TIP) is admissible as valid evidence in this case. In our case
TIP is corroborated with some other evidences. The court must take into notice and consider
TIP as the valid evidence as it corroborates the medical reports which suggest a forced
intercourse. It has an evidentiary value in our case. This court had laid that even though the
TIP is not substansive evidence but it can be consider as valid evidence to convict the
accused. In the case at hand, for instance prosecution blindness meant that she had no visual
contact with the world. Her primary mode of identifying those around her, therefore, is by
the sound of their voice. And so her testimony is entitled to equal weight as that of a
prosecutrix who would have been able to visually identify the appellant.

B. Whether the conduct of a test identification parade is a violation of the fundamental

rights of the accused?
It is humbly submitted before this honourable court that conducting of TIP is not violative
of any of the fundamental right of the accused. Conducting TIP is within the premise of
constitution and it is not infringing the fundamental rights of accused. What is prohibited
by Article 20(3) of the Constitution is procuring by compulsion of the positive volitional
evidentiary acts of an accused. It is true that an accused may be said to be compelled to
attend a test identification parade, but this compulsion does not involve any positive
volitional evidentiary act. The identification of him by a witness is not his act, even though
his body is exhibited for the purpose. His compelled attendance at a test identification
parade is comparatively remote to the final evidence and cannot be said by itself to furnish
any positive volitional evidentiary act. In unravelling the legal tapestry surrounding Test
Identification Parades, it is evident that these procedures are indispensable tools for
establishing the identity of an accused. Striking a balance between investigative imperatives
and constitutional safeguards, the courts emphasize the need for a case-specificapproach,
recognizing the variable credibility of TIPs. The nuanced position on the refusal to
participate in a TIP underscores the importance of corroborative evidence and judicial
discretion. Ultimately, as we navigate the complexities of TIPs, the overarching goal
remains the pursuit of justice within the bounds of a fair and transparent legal system.

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C. Whether the Section 3 of the Criminal Procedure (Identification) Act, 2022 is
constitutionally valid?

It is humbly submitted before this honourable court that the section 3 of Criminal Procedure
(Identification) Act, 2022 is constitutionally valid. The Criminal Procedure (Identification)
Act, 2022, establishes legal sanction for taking the necessary body measurements of individuals
who are obligated to provide such measurements, which will improve the speed and efficiency
of criminal investigations as well as the likelihood that criminals will be found guilty. The
Identification of Prisoners Act, 1920, which was in existence for 102 years, is replaced by the
Criminal Procedure (Identification) Act, 2022. The advent of technology and the need for a
scientific approach to criminal investigation is great. As it is imperative to maintain a balance
between the privacy rights of citizens and also the security of the state, the Criminal Procedure
(Identification) Bill 2022 would suffice as an appropriate technique of investigation. The Act
makes provisions for the use of modern techniques to capture and record appropriate body
measurements.It expands the scope of persons whose measurements can be taken. This will
help the investigating agencies to gather sufficient legally admissible evidence and establish
the crime of the accused person. It provides legal sanction for taking appropriate body
measurements of persons who are required to give such measurements. This will make the
investigation of crime more efficient and expeditious and will also help in increasing the
conviction rate.

D. Whether the issuance of a direction to refrain from publishing details of a criminal

case and stories about the accused is constitutionally permissible?

It is humbly submitted that the issuance of a direction to refrain from publishing details of
criminal case and stories about accused is not constitutionally permissible. The publication of
case and stories is not infringing the right of Accused. The role of media in justice can be
understood by the lines of Jeremy Bentham. “Where there is no publicity there is no justice.
Publicity is the very soul of justice.” Trial by Media is a phrase used when the Media takes a
particular interest in an ongoing case. There could be many reasons for the same one being the
crime in itself was sensational or involving a celebrity or a high-profile personality as accused
or the victim

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 ARGUMENTS ADVANCED

ISSUE-1) WHETHER THE EVIDENCE COLLECTED THROUGH THE TEST

IDENTIFICATION PARADE, IN THIS CASE, IS WHETHER ADMISSIBLE AS
VALID EVIDENCE?

It is submitted before this court that the evidence collected through Test Identification Parade
(afterward referred as TIP) is an admissible as valid evidence in this case. In our case TIP is
corroborated with some other evidences. It has an evidentiary value in our case. The counsel
would deal issue with following points:

A.TEST IDENTIFICATION PARADE A VALID EVIDENCE

1. ‘Identification’ is the proof in a legal proceeding that a person, document, or other thing is
that which is alleged to be. Identification is the evidence of identity. Phipson states that “it
is often important to establish the identity of a person who a witness testifies that he saw
on a relevant occasion. Sometimes, the witness will testify that he had seen the person
before, or even know the person well, and therefore recognised the person observed on the
relevant occasion”. The identity of a person can be established by the evidence of persons
who know him. Section 7 of the Arka Sakshya Abhiniyam (afterward referred as ASA),
2022 is concerned with the admissibility of facts which are necessary to explain a fact in
issue or relevant fact. The section deals with that kind of evidence which if considered
separate and distinct from other evidence would be irrelevant; but if it is taken into
consideration in connection with some other facts, proved in the case it explains and throws
light upon them. Test of identification parade is integral part of investigation. In regard to
the admissibility of test of identification parade, they are relevant by virtue of Section 7 of
the ASA, 2022.
2. The Hon'ble Supreme Court of Santorin was pleased to opine in Budhasen v. State of
U.P1that the T.I.P. has two fold objectives:
a. Establishing identity of the accused and corroborating the identity of witness
before trial.
b. TIP also tests the memory of the witnesses.
3. In our case, the objectives of the Test Identification Parade (TIP) are successfully achieved.
The first objective is achieved when the victim had identified the accused by voice and
touch in 3 rounds conducted by magistrate (referred to annxeure1 i.e. TIP Report).Second

1
Budhasen v. State of A.P, (1970) AIR 1321

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 object is achieved when the victim during F.I.R given the name of accused and she
recognise him during TIP. The TIP serves as a means to fulfill the legal requirements and
objectives set forth in our case. It provides a valuable platform for the identification of
suspects and plays a crucial role in the legal proceedings.
4. A three-Judge Bench of this Court in the case of Rajesh v. State of Haryana2, had the
occasion to consider (i) the purpose of conducting a TIP, (ii) the source of the authority of
the investigator to do so, (iii) the manner in which these proceedings should be conducted,
(iv) the weight to be ascribed to identification in the course of a TIP, and (v) the
circumstances in which an adverse inference can be drawn against the accused who refuses
to undergo the process. After due consideration of the aforesaid, this Court summarised the
principles as follows:-
 “The purpose of conducting a TIP is that persons who claim to have seen the offender
at the time of the occurrence identify them from amongst the other individuals without
tutoring or aid from any source. An identification parade, in other words, tests the
memory of the witnesses, in order for the prosecution to determine whether any or all
of them can be cited as eyewitness to the crime.
 There is no specific provision either in Arka Nagrik Suraksha Sanhita (Hereinafter
referred as ANSS) or the ASA which lends statutory authority to an identification
parade. Identification parades belong to the stage of the investigation of crime and there
is no provision which compels the investigating agency to hold or confers a right on the
accused to claim a TIP.
 Identification parades are governed in that context by the provision of Section 162
ANSS.A TIP should ordinarily be conducted soon after the arrest of the accused, so as
to preclude a possibility of the accused being shown to the witnesses before it is held.
 The identification of the accused in court constitutes substantive evidence.
 Facts which establish the identity of the accused person are treated to be relevant under
Section 9 of ASA .
 A TIP may lend corroboration to the identification of the witness in court, if so required.
 As a rule of prudence, the court would, generally speaking, look for corroboration of
the witness’ identification of the accused in court, in the form of earlier identification
proceedings. The rule of prudence is subject to the exception when the court considers

2
Rajesh v. State of Haryana, (2021) 1 SCC 118,

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 it safe to rely upon the evidence of a particular witness without such, or other
corroboration.
 Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso
facto make the evidence of identification inadmissible.
 The weight that is attached to such identification is a matter to be determined by the
court in the circumstances of that particular case.
 Identification of the accused in a TIP or in court is not essential in every case where
guilt is established on the basis of circumstances which lend assurance to the nature and
the quality of the evidence.
 The court of fact may, in the context and circumstances of each case, determine
whether an adverse inference should be drawn against the accused for refusing to
participate in a TIP. However, the court would look for corroborating material of a
substantial nature before it enters a finding in regard to the guilt of the accused.”

5. In Sadashiv Ramrao Hadbe v. State of Maharashtra3, this Court reiterated that the sole
testimony of the prosecutrix could be relied upon if it inspires the confidence of the Court:
“It is true that in a rape case the accused could be convicted on the sole testimony of the
prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version
given by the prosecutrix is unsupported by any medical evidence or the whole surrounding
circumstances are highly improbable and belie the case set up by the prosecutrix, the court
shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely
careful in accepting the sole testimony of the prosecutrix when the entire case is improbable
and unlikely to happen.”
6. In Malkhansingh v. State of M.P4, a three-Judge Bench of this Court considered the
evidentiary value of the identification of the appellant in that case by the prosecutrix in the
Court without holding a TIP in the course of the investigation. It was argued before the
Court that the identification in Court not preceded by a TIP is of no evidentiary value. On
the other hand, it was argued on behalf of the prosecution that the substantive evidence is
the evidence of identification in Court and, therefore, the value to be attached to such
identification depends on facts and circumstances of each case. The Court ultimately
answered as:-“It is trite to say that the substantive evidence is the evidence of identification

3
Sadashiv Ramrao Hadbe v. State of Maharashtra (2006) 10 SCC 92
4
Malkhansingh v. State of M.P (2003) 5 SCC 746

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 in court. Apart from the clear provisions of Section 9 of the Evidence Act (referred to
Section 7 of ASA), the position in law is well settled by a catena of decisions of this Court.
The facts, which establish the identity of the accused persons, are relevant under Section 9
of the Evidence Act. It is accordingly considered a safe rule of prudence to generally look
for corroboration of the sworn testimony of witnesses in court as to the identity of the
accused who are strangers to them, in the form of earlier identification proceedings. The
weight to be attached to such identification should be a matter for the courts of fact. In
appropriate cases it may accept the evidence of identification even without insisting on
corroboration.” [Emphasis supplied]
7. We deem it appropriate to refer to the factors which are to be considered for in-Court
identification and were relied by the American Supreme Court in John R. MANSON,
Commissioner of Correction of Connecticut v. Nowell A. BRATHWAITE5 reported in,
where while referring to its earlier decision in William S. NEIL, Warden v. Archie
6
Nathaniel BIGGERS , it held that reliability is the linchpin in determining the
admissibility of identification testimony and the factors to be considered are: the
opportunity of the witness to view the criminal at the time of the crime; the witness’ degree
of attention; the accuracy of his prior description of the criminal; the level of certainty
demonstrated at the confrontation, and the time between the crime and the confrontation.
8. Where the witness states before the court that, he identified the accused at the test
identification parade and the magistrate corroborates the witness, then there is no difficulty.
But, the problem begins when the witness states that, (a) he did not identify the accused at
the test identification parade, but is able to identify the accused in the court; or, (b) he did
identify the accused at the test identification parade, but is unable to identify the accused
in the court; or, (c) he did not identify the accused at the test identification parade, nor is
able to identify the accused in the court. The question for consideration which arises here
is this: Can the magistrate give evidence of the test identification parade which was held
by him and during which the accused was identified by the witness?

9. The court must took the above cases into notice and consider TIP as the valid evidence as
it corroborates the medical reports which suggest a forced intercourse. This court in the
above cases had laid that even though the TIP is not substantive evidence but it can be

5
John R. MANSON, Commissioner of Correction of Connecticut v. Nowell A. BRATHWAITE, 432 U.S. 98
(1977)
6
Warden v. Archie Nathaniel BIGGERS, 409 U.S. 188 (1972)

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 consider as valid evidence to convict the accused. In the case at hand, for instance
prosecution blindness meant that she had no visual contact with the world. Her primary
mode of identifying those around her, therefore, is by the sound of their voice. And so her
testimony is entitled to equal weight as that of a prosecutrix who would have been able to
visually identify the appellant.

B. TIP ITSELF AS VALID ADMISSIABLE EVIDENCE IN THIS CASE

1. ASA doesn't mandate corroboration; Victim's testimony is akin to injured witness

credibility. The Hon'ble Supreme Court in Mohd. Imran Khan v. State Government
(NCT of Delhi) 7ruled that "the Evidence Act, 1872 nowhere says that her evidence cannot
be accepted unless it is corroborated in material particulars. She is undoubtedly a
competent witness under Section 118 of the Evidence Act, and her evidence must receive
the same weight as is attached to an injured in cases of physical violence". Court also said
that the resulting legal principle dictates that if the statement of the prosecutrix is deemed
trustworthy and dependable, it does not necessitate corroboration. The court has the
authority to pronounce the accused guilty based solely on the testimony provided by the
prosecutrix.
2. In Sheo Shankar Singh v. State of Jharkhand 8“as to what weight should be given to
identification is to be decided by court in peculiar circumstances of case. In Md .Kalam v.
State of Rajasthan 9 the weight to attach such identification should be matter for the court
of fact. In appropriate cases, it may accept the evidence of identification ,even without
insisting on corroboration
3. State of Maharashtra v. Chandraprakash Kewalchand Jain 10, the Hon'ble Supreme
Court held that "to insist on corroboration except in the rarest of rare cases is to equate a
woman who is a victim of the lust of another with an accomplice to a crime and thereby
insult womanhood. It would be adding insult to injury to tell a woman that her story of woe
will not be believed unless it is corroborated in material particulars as in the case of an
accomplice to a crime."
4. Victim's testimony in Sexual Assault cases is not comparable to accomplice. The 3 Judges'
division bench of the hon’ble apex court, in the case of Karnel Singh v. State of M.P11,

7
Mohd. Imran Khan v. State Government (NCT of Delhi), 2011(10) SCC 192
8
Sheo Shankar Singh v. State of Jharkhand, 2011 (3) SCC 654
9
Md .Kalam v. State of Rajasthan, 2008(11) SCC 352
10
State of Maharashtra v. Chandraprakash Kewalchand Jain, 1990 AIR 658
11
Karnel Singh v. State of M.P,1995 AIR 2472

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MEMORANDUM ON BEHALF OF RESPONDENT
 relied upon the statement that "a woman who is a victim of sexual assault is not an
accomplice to the crime but is a victim of another person's lust and therefore her evidence
need not be tested with the same amount of suspicion as that of an accomplice. She is not
in the category of a child witness or an accomplice and therefore the rule of prudence that
her evidence must be corroborated in material particulars has no application; at the most
the court may look for some evidence which lends assurance". Further, the hon'ble court
upheld the conviction of the accused person after placing reliance on the testimony of the
victim.
5. In the medical report there is no finding of injuries this does not implies that there is consent
of girl. Thus this does not reduces its value as court had observed: Obviously consent
involves no denial, no resistance. It cannot be equated to inability to resist out of
helplessness. Here we are concerned with a blind girl. As observed by the Supreme Court,
absence of violence or stiff resistance may even suggest helpless surrender due to sheer
timidity and would not amount to consent.
6. In Gurcharan Singh v. State of Haryana12. It cannot be considered as a mitigating
circumstance. Much stress has been laid on absence of injuries on either the prosecutrix or
the petitioner it cannot be said that whenever residence is offered there is bound to be injury
on the body of the victim or the accused. It is not a case that there was no injury at all, and
there was injury on prosecutrix's cheek. Absence of any injury on other parts of
prosecutrix's body does not falsify the case of rape by the petitioner. In Balwant Singh and
Ors v. State of Punjab13, in the said case, prosecutrix was raped by four persons. Absence
of injury was held inconsequential. In Krishna Prasad Rajguru Mahapitra v. State of
Orissa14, it was held that an act done under helpless resignation cannot be an act on consent.
Absence of injuries cannot be always the sine qua non of consent. As indicated above, the
passive submission may be due to several factors. There is a gulf of difference between
consent and submission. While the consent " involves submission, the contrary is not
always there and the mere act of submission does not involve consent. The surrounding
circumstances and previous or contemporaneous acts and conduct have to be looked into.
Here the prosecutrix is a blind girl. Helplessness is natural on account of her physical
deficiency.

12
Gurcharan Singh v. State of Haryana , (1972) 2 SCC 749
13
Balwant Singh and Ors v. State of Punjab , AIR 1987 SC 1080
14
Rajguru Mahapitra v. State of Orissa, (1985) 2 Cr. L. C. 486

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7. The counsel for appellant would rely on the point that TIP is not a substantive evidence and
therefore it would not to be rely on there must be corroboration but the this court had ruled
in above judgements about there is no requirement of corroboration in sexual crimes even
the testimony of the victim be considered as source for accused convict. In our case a
procedural TIP had been held and the victim had recognised thrice as per report. The
procedure is completely followed. No lacunae in the procedure .It is completely video
graphed and done by Magistrate itself. Therefore must be considered as valid evidence
admissible in this case.
C. VOICE IDENTIFICATION A VALID FACET OF TIP
1. The law with regard to voice identification is settled that if the Court is satisfied about the
identification of person by evidence of identification of voice alone no rule of law prevents
its acceptance as the sole basis for conviction. Voice identification becomes very crucial
and reliable when the parties are known to each other since earlier.
2. In the light of the above observations, the Court found that the voice identification of the
accused by a witness, whose credibility had otherwise been accepted by the courts below,
was not improbable. This principle was also applied by this Court in Mohan Singh v. State
Of Bihar15, In this case, voice identification was accepted, inter alia, on the ground that
there was no evidence adduced to challenge the evidence of the witness that he had
acquaintance with the accused and that he knew the voice of the accused. The Court also
adverted to the decision of this Court in Inspector of Police, Tamil Nadu v. Palanisamy
Alias Selvan16, wherein it was held that though identification from voice is possible, no
evidence had been adduced to show that the witnesses were closely acquainted with the
accused to enable voice identification and that too from very short replies. Thus, from the
above cases we may cull out the principle that identification from the voice of the accused
may be possible if there is evidence to show that the witness was sufficiently acquainted
with the accused in order to recognise him or her by voice.
3. In Kishnia & ors v. State of Rajasthan17 the conviction was sustained on identification
by voice at night due to previous acquaintance between the witness and the accused.In
Dalbir Singh V. State Of Haryana18 it was observed that even an ocular identification at
night was difficult but if the person was acquainted and related to another, identification

15
Mohan Singh v. State Of Bihar AIR 2009 SC 1012
16
Inspector Of Police, Tamil Nadu v. Palanisamy Alias Selvan AIR 2009 SC 1012
17
Kishnia & ors v. State of Rajasthan , (2004) 11 SCC 567
18
Dalbir Singh v. State Of Haryana, (2008) 11 SCC 425

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 inter alia by voice was sustain-able. In the case of Inspector of Police, T.N. v. Palanisamy
@ Selvan19 has observed that where the witnesses were there cannot be a quarrel to the
proposition that identification by voice is a weak piece of evidence. Court has to be
extremely cautious in basing the conviction purely on the evidence of Voice identification.
The evidence led by the prosecution must be cogent, positive, affirmative and assertive and
must establish beyond all reasonable doubts that the witness had ability to identify voice
and additionally there was sufficient opportunity for the witness to identify the assailant by
voice only. If the Court is satisfied about the identification of persons by evidence of
identification of voice alone, no rule of law prevents its acceptance as the sole basis for
conviction. In any case, the assessment of prosecution evidence based on voice
identification has to be made in the surrounding circumstances of an individual case not
closely acquainted with the accused and claimed to have identified the accused from short
replies given by him, evidence of identification.
4. This principle has further been noted with approval in a recent decision of the Apex Court
in Dalbir Singh v. State of Haryana20 (supra) wherein on acquittal of other accused
persons, it was urged that the evidence was partisan, lacks cogency and credibility and
could not be made basis to convict the appellant therein. In that case, the trial court had
directed the acquittal of the co-accused whereas the appellant was convicted on the basis
of identification of his voice. The High court and the Apex Court had held therein that
identification was possible, particularly when the accused was the grandson of the witness.
5. Further, reliance was placed therein on the decision in Anwar Hussain v. State of U.P 21
to hold that in a dark night, ocular identification may be difficult in some cases but if a
person is acquainted and closely related to another, from the manner of speech, gait and
22
voice, identification is possible. In Saha Alam Miah v. State Of Tripura On
identification by voice, it has been observed by this court in the said report:

"Only when there is exchange of words in any form, meaning the generation of voice, in that
case a court can weigh whether identification by voice can be relied on whether it shall go
further for corroboration for returning the finding of conviction of the accused. For the purpose
of identification by voice, three elements are to be proved, viz., (1) element of generation of

19
Inspector of Police, T.N. v.Palanisamy @ Selvan, AIR 2009 SC 1012
20
Dalbir Singh v. State Of Haryana, (2004) 11 SCC 567
21
Anwar Hussain v.State of U.P , (1982) 1 SCC 491
22
Saha Alam Miah v. State Of Tripura , (2014) 2 TLR 381

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voice, (2) acquaintance with that voice and (3) the manner of reception of voice and none of
these elements are mutually exclusive. [Emphasis added]

6. As seen in the case of Dola alias Dolagobinda Pradhan v. State of Odisha23, the evidence
of the witness was considered on the basis of voice identification, herein the court of law
gave the ruling that if the witness is believed to be in close proximity to the accused during
the crime scene that it can recognize the voice of the accused than the evidence can be
admitted in the court of law. Although we have to keep in mind that the voice recognition
is too fragile of an evidence but if the court believes in the credibility of the evidence than
it can be considered in the court of law.
7. The victim had identified the accused in investigation parade through his voice. The victim
and accused have acquaintance as they studied till class 5th in same school and not only this
they are neighbours to each other. The accused being blind is able to recoginise the person
through voice and she was familiar with the voice of the accused being her neighbour. The
counsel on behalf of respondent is well versed that when the accused is known to the victim
TIP is not required but in our case the victim being blind, TIP through one of its facet i.e.
Voice recoginisation is done which is to be consider as admissible evidence in this case.
The council would rely on that in the case at hand, for instance, Prosecution’s blindness
meant that she had no visual contact with the world. Her primary mode of identifying those
around her, therefore, is by the sound of their voice. And so her testimony is entitled to
equal weight as that of a prosecutrix who would have been able to visually identify the
appellant.

ISSUE-2) WHETHER THE CONDUCT OF A TEST IDENTIFICATION PARADE IS

A VIOLATION OF THE FUNDAMENTAL RIGHTS OF THE ACCUSED?

It is humbly submitted before this honourable court that conducting of TIP is not violative of
any of the fundamental right of the accused. Conduction of TIP is within the premise of
constitution and it is not infringing the fundamental rights of accused.

A. Conduction of TIP not violative of Article 20(3)

1. Article 20(3) of the Constitution reads thus: - “Article 20(3):─No person accused of any
offence shall be compelled to be a witness against himself.” It is based on the legal maxim

23
Dola alias Dolagobinda Pradhan v. State of Odisha AIR 2018 SC4020

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“nemo teneteur prodre accussare seipsum”, which means “No man is obliged to be a witness
against himself.”

1. The true purport of clause (3) of Article 20 of the Constitution referred to above was laid
down by this Court in the case of M.P. Sharma v. Satish Chandra24. Jagannadhadas J.,
delivering the judgment of the Court, observed:- “Indeed, every positive volitional act,
which furnishes evidence is testimony, and testimonial compulsion connotes coercion
which procures the positive volitional evidentiary acts of the person, as opposed to the
negative attitude of silence or submission on his part.”
2. We are conscious of the fact that M.P. Sharma (supra) referred to above came to be
overruled in K.S. Puttaswamy v. Union of India25, to the extent that it had observed that
privacy is not a right guaranteed by the Arka santorinn Constitution. It was held in M.P.
Sharma (supra) that in absence of a provision like the Fourth Amendment to the U.S.
Constitution, a right to privacy could not be read into the Arka santorinn Constitution. In
the case on hand, we are not concerned with the right of privacy of an accused when it
comes to putting him to TIP. What has been ruled in K.S. Puttaswamy (supra) in context
of Article 21, is that an invasion of privacy must be fulfilled on the basis of a law which
stipulates a procedure which is fair, just and reasonable.
3. What is prohibited by Article 20(3) of the Constitution is procuring by compulsion of the
positive volitional evidentiary acts of an accused. It is true that an accused may be said to
be compelled to attend a test identification parade, but this compulsion does not involve
any positive volitional evidentiary act. His mere attendance or the exhibition of his body at
a test identification parade even Though compelled, does not result in any evidentiary act
until he is identified by some other agency. The identification of him by a witness is not his
act, even though his body is exhibited for the purpose. His compelled attendance at a test
identification parade is comparatively remote to the final evidence and cannot be said by
itself to furnish any positive volitional evidentiary act.
4. Peare Lal Show v. The State26 Mitter, J. of the Calcutta High Court in his separate
judgment observed thus: - “True, we are to construe Article 20(3), but the language of
Article 20(3) is as to the material part tolidem verbis the 5th Amendment of the American
Constitution. Dealing with the point, Holmes, J. in Holt v. United States27, observed: “A

24
M.P. Sharma v. Satish Chandra AIR 1954 SC 300
25
K.S. Puttaswamy v. Union of Arka santorin (2017) 10 SCC 1
26
Peare Lal Show v. The State ,AIR 1961 Cal 531
27
Holt v. United States ,(1910) 218 US 245

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 question arose as to whether a blouse belonged to the prisoner. A witness testified that the
prisoner put it on and it fitted him. It is objected that he did this under the same duress that
made his statements inadmissible, and that it should be excluded for the same reasons. But
the prohibition of compelling a man in a criminal court to be witness against himself is a
prohibition of the use of physical or moral compulsion to extort communications from him,
not an exclusion of his body as evidence when it may be material. The objection in principle
would forbid a jury to look at a prisoner and compare his features with a photograph in
proof. Moreover, we need not consider how far a court would go in compelling a man to
exhibit himself.
5. Bhattacharya, J. by his separate but concurring judgment observed thus: - “In M.P. Sharma
28
v. Satish Chandra , it is pointed out that the guarantee under Article 20(3) of the
Constitution is available to the person against whom a first information report has been
recorded. As was observed in Collector of Customs v. Calcutta Motor and Cycle Co29,
no formal complaint is necessary and even if a person has been named as one who
committed an offence, particularly by officers who are competent to launch a prosecution
against him, he has been accused of an offence within the meaning of Article 20(3) and he
can claim protection under that provision of law and, therefore, the extortion of any
evidentiary material even at the stage of investigation, as in the present case, which may
aid in the making out of a case against him may be within the meaning of condemnation of
the Article.
6. After the decision of the Supreme Court in Sharma's case, referred to above, it cannot be
said that the guarantee in Article 20(3) is confined to the oral evidence of the accused. Their
Lordships pointedly observed: “We can see no reason to confine the contents of the
constitutional guarantee to this barely literal import. So to limit it would be to rob
guarantee of its substantial purpose and to miss the substance for the sum as stated in
certain decisions. A person can be a witness not merely by giving oral evidence but also by
producing documents or making intelligible gestures as in the case of a dumb witness or
the like. To be a witness is nothing more than to furnish evidence and such evidence can be
furnished through the lips or by production of a thing or of a document or any other means”.
7. It will appear from People v. Swallow30, that the rule against self-incrimination is not
violated when the accused is compelled to exhibit himself or part of his body to the court

28
M.P. Sharma v. Satish Chandra ,AIR 1954 SC 300
29
Collector of Customs v. Calcutta Motor and Cycle Co, AIR 1958 Cal 682,
30
People v. Swallow ,165 New York Supp. 915

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 or to allow a record of his finger prints to be taken. In State v. Ah Chuey31, the Court held
that an order directing the accused to exhibit certain tattoo marks on his person would not
amount to an infringement of the rule against self-incrimination.
8. Negativing the contention that taking of finger prints is a violation of the privilege against
self-Incrimination, Willis in Constitutional Law of the United States (1936 Edition, page
522) observed inter alia: “The accused does not exercise a volition or give oral testimony.
He is passive. He is not giving testimony about his body, but is giving his body". Speaking
of inspection of bodily features by the Tribunal or by witnesses, Wigmore in Evidence,
Vol. VIII, page 375, comments that what is obtained from the accused by such action is not
testimony about his body but his body itself.
9. If, as we find, taking of thumb impression is not violative of Article 20(3), with greater
force the reasons set out above mutatis mutandis will be applicable to a case directing the
production of the accused in a test identification parade, apart from such consideration as
interposition of a magisterial order. It is not the accused who is called upon to testify against
himself but somebody else on seeing him and others now in the parade may have something
to say later on. The accused does not produce any evidence or perform any evidentiary act.
It may be a positive act and even a volitional act, but only to a limited extent, when he
walks to the place where the test identification parade is to be held, as has been urged by
Mr. Dutt, but certainly it is not his evidentiary act.
10. The view that we take in the instant case is in full accord with the test of positive volitional
evidentiary act laid down by the Supreme Court in the case of M.P. Sharma v. Satish
Chandra32, The identification has by itself no independent value. As stated by Viscount
Haldane L. C. in Rex v. Christie33, “its relevancy is to show that the witness “was able to
identify at the time and to exclude the idea that the identification of the prisoner in the dock
was an afterthought or a mistake.” Lord Moulton (with whom Viscount Haldane L. J.
agreed) said at page 558: “Identification is an act of the mind, and the primary evidence of
what was passing in the mind of a man is his own testimony, where it can be obtained.”
11. The Supreme Court of Arka Santorin recently addressed this issue of whether TIPs are in
violation of Article 20(3), in the case of Mukesh Singh v. The State (NCT of Delhi), 34the
court endorsed the Calcutta High Court’s decision in Peare Lal Show v. The State35,

31
State v. Ah Chuey,(1879) 33 Am Re 530,
32
M.P. Sharma v. Satish Chandra AIR 1954 SC 300.”
33
Rex v. Christie,(1914) A. C. 545 (551) (E):-
34
Mukesh Singh v. The State (NCT of Delhi),AIR2023 SC 4097
35
Peare Lal Show v. The State ,AIR 1961 Cal 531

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 holding that they are not in violation of the constitutional safeguard. The court further,
clarified that the Test Identification Parade (TIP) is a crucial part of the investigation
process, emphasizing the statutory authority of the investigating agency. Importantly, there
is no provision allowing the accused to request participation in a test identification parade.
In summary, the challenge under Article 20(3) is valid only when eyewitnesses have prior
knowledge of the accused, and the trial court heavily relies on the Test Identification Parade
as substantial evidence for conviction.
12. In unravelling the legal tapestry surrounding Test Identification Parades, it is evident that
these procedures are indispensable tools for establishing the identity of an accused. Striking
a balance between investigative imperatives and constitutional safeguards, the courts
emphasize the need for a case-specific approach, recognizing the variable credibility of
TIPs. The nuanced position on the refusal to participate in a TIP underscores the importance
of corroborative evidence and judicial discretion. Ultimately, as we navigate the
complexities of TIPs, the overarching goal remains the pursuit of justice within the bounds
of a fair and transparent legal system.
ISSUE -3) WHETHER THE SECTION 3 OF THE CRIMINAL PROCEDURE
(IDENTIFICATION) ACT, 2022 IS CONSTITUTIONALLY VALID?

It is humbly submitted before this honourable court that the Criminal Procedure (Identification)
Act, 2022 is constitutionally valid.

A. OBJECTIVE OF THE ACT:

The Criminal Procedure (Identification) Act, 2022, establishes legal sanction for taking the necessary
body measurements of individuals who are obligated to provide such measurements, which will
improve the speed and efficiency of criminal investigations as well as the likelihood that criminals will
be found guilty. The Identification of Prisoners Act, 1920, which was in existence for 102 years, is
replaced by the Criminal Procedure (Identification) Act, 2022. The law allows for the collection,
storage, and analysis of physical and biological samples, including scans of the iris and retina of guilty
individuals, by law enforcement agency including magistrates and prison staff. The Act expands the
definition of "measurements," the data that may be gathered includes fingerprints, palm prints,
footprints, photographs, physical samples. The Criminal Procedure (Identification) Bill 2022 was
presented to fill the outdated gaps that the Identification of Prisoner Act, 1920 had and to widen
the scope of evidence for a conviction. The advent of technology and the need for a scientific
approach to criminal investigation is great. As it is imperative to maintain a balance between

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the privacy rights of citizens and also the security of the state, the Criminal Procedure
(Identification) Bill 2022 would suffice as an appropriate technique of investigation. The Act
makes provisions for the use of modern techniques to capture and record appropriate body
measurements.It expands the scope of persons whose measurements can be taken. This will
help the investigating agencies to gather sufficient legally admissible evidence and establish
the crime of the accused person. It provides legal sanction for taking appropriate body
measurements of persons who are required to give such measurements. This will make the
investigation of crime more efficient and expeditious and will also help in increasing the
conviction rate.

B. THERE IS RESONABLE CLASSIFICATION: DOCTRINE OF

PROPOTIONALITY APPLIES

1. The justification provided for this presumption is that the legislature shall think and
formulate the laws that are compliant with the Constitution and shall not deliberately
infringe any provision of our Constitution. The presumption has a snowballing effect on
the delegated legislation also as pronounced in various judgments also. The Presumption
of Constitutionality restricts the power of the Judiciary to exercise judicial review which
must be exercised sparingly. Due to this assumption, the courts presume the fact that the
rules or the laws made satisfy all the judicially established constitutionality tests. The
presumption also hangs the sword of burden of proof on the person who challenges a statute
or provision of law. On the other hand, the strict scrutiny test turns the tables by putting
burden of proof on the government.
2. The doctrine of presumption of constitutionality comes within the ambit of presumption
with respect to law. It states that as and when a statute is challenged in the court of law, the
Judiciary should have a construction in favour of the statute or provision. The doctrine
upholds and ensures the reasonableness and prudency of the Legislature. Thus, because of
the doctrine, the person or the petitioner challenging the statute must prove 'beyond any
reasonable doubt' that the statute violates certain principles of the Constitution or is ultra
vires to the Arka santorinn Constitution and thus, should be declared void.
3. It is a settled principle that the Judiciary presumes in favour of the constitutionality of the
primary legislations. The courts presume if the legislature passes on or delegates the
authority to the executive to make or amend certain provisions, then they shall be in favour
of the constitutional principles and rules.

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4. In Hinsa Virodhak Sangh v.Mirzapur Moti Kuresh Jamat and Ors. 36, the apex court
stated that there is a presumption of constitutionality in favour of the parent law and the
delegated legislation and thus, the court should restrain themselves from using their
absolute powers as and when the question of constitutionality of the parent law or the
delegated legislation is concerned. However, if it is proven by the petitioner that there is a
clear violation of the provisions of the Constitution, then the courts can declare the statute
or provision unconstitutional.
5. In another case Amit Kumar v. The State of Bihar & Ors 37before Patna High Court, the
presumption of constitutionality in cases of delegated legislation was upheld. The hon'ble
bench stated that it is true that the courts must exercise judicial restraint in cases of primary
and parent statutes. However, the same principle must also apply to the delegated or the
subordinate legislation as it arises from a statute enacted by the legislature and when the
violation of constitutional principles is proven beyond any reasonable doubt or question.
6. One of the main reasons of non-applicability is that the Arka santorinn Constitution itself
provides for intelligible differentia and reasonable classification. The interpretation of
Article 14 of the Constitution allows the classification on the basis of reasonable grounds.
In Ashok Kumar Thakur v.Union of India & Ors38, the hon'ble Supreme Court observed
that it might not be possible to implement scrutiny test in Arka Santorin. Moreover, the test
cannot be applied to Arka santorinn statutes as the ambit of affirmative actions is available
in the constitutional provisions and there is no principle related to "suspect legislation" in
the Arka santorinn legal system. It has always been presumed that the doctrine of
presumption of constitutionality prevails in the enactments by the legislature. However, the
Arka santorinn Judiciary has not completely swept off the idea of applying the strict
scrutiny test. In the cases where the grounds are so unreasonable, the courts have taken
steps of quashing the enactments by declaring them unconstitutional.
7. In State of Madras v.V.G. Rao39, it was observed, "it is important to bear in mind that the
test of reasonableness wherever prescribed should be applied to each individual Statute
impugned and no abstract standard or general pattern of reasonableness can be laid down
as applicable to all cases. The nature of the right al1eged to have been infringed, the
underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to

36
Hinsa Virodhak Sangh v.Mirzapur Moti Kuresh Jamat and Ors. Appeal (civil) 5469 of 2005.
37
Amit Kumar v. The State of Bihar & Ors, CIVIL W.P.5611 OF 2022
38
Ashok Kumar Thakur v. Union of Arka santorin & Ors, W.P (CIVIL)265 OF 2006
39
State of Madras v. V.G. Rao,1952 AIR 196

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 be remedied thereby, disproportion of the imposition, and the prevailing conditions of the
time should all enter into judicial verdict." Thus, it can be said that in rare cases, the test of
strict scrutiny can be adopted but a blanket adoption of the concept might not be possible.
8. Naturally, the question arises as to what comprises ‘reasonable classification’. The
“Anwar Ali Sarkar case40”enunciates the Locus Classicus pertaining to the the test of
reasonable classification. Justice S.R. Das throws light on the two limbs of the test. The
first limb is the presence of intelligible differentia and the second refers to how the same
must have a rational relation with the object sought to be achieved by the act. He elucidates
as follows-“In order to pass the test, two conditions must be fulfilled, namely, that the
classification must be founded on an intelligible differentia which distinguishes those that
are grouped together from others and that the differentia must have a rational relation to the
object sought to be achieved by the Act. It is necessary that there must be nexus between
them” This classification must be on different bases. The classification must not be
arbitrary but must be rational, that is to say, it must not only be based on some qualities or
characteristics which are to be found in all the persons grouped together and not in others
who are left out but those qualities or characteristics must have a reasonable relation to the
object of the legislation”
9. The matching of DNA samples is emerging as a vital tool for linking suspects to specific
criminal acts. It may also be recalled that the as per the majority decision in Kathi Kalu
Oghad,41 the use of material samples such as fingerprints for the purpose of comparison
and identification does not amount to a testimonial act for the purpose of Article 20(3).
Hence, the taking and retention of DNA samples which are in the nature of physical
evidence does not face constitutional hurdles in the Arka santorinn context. However, if the
DNA profiling technique is further developed and used for testimonial purposes, then such
uses in the future could face challenges in the judicial domain.
10. The measurements collected and the classification under section 3 of the act i.e a person
commited crime punished with 7years imprisonment, a person committing crime against
women and child. As we know women and child are the most vulernable section of society
and crime against them is crime against society. Thus this classification is reasonable as the
accused or the criminal has committed the heinous crime and it is not infringing its any
Fundamental rights thus Section 3 of the act is constitutionally valid.

40
State of West Bengal v. Anwar Ali Sarkar,1952 AIR 75
41
State of Bombay v. Kathi Kalu Oghad, 1961 AIR 1808

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Issue-4) WHETHER THE ISSUANCE OF A DIRECTION TO REFRAIN FROM
PUBLISHING DETAILS OF A CRIMINAL CASE AND STORIES ABOUT THE
ACCUSED IS CONSTITUTIONALLY PERMISSIBLE?

It is humbly submitted that the issuance of a direction to refrain from publishing details of
criminal case and stories about accused is not constitutionally permissible. The publication of
case and stories is not infringing the right of Accused. Not publishing of the details of criminal
stories and case would infringes others rights is argued on:

A. RIGHT TO SPEECH AND EXPRESSION: FREEDOM OF PRESS

1. Democracy is the rule of the people, a system which has three strong pillars. But as Arka
santorin society today has become somewhat unstable on its 3 legs- the executive, the
legislature and the judiciary, the guarantee of Article 19 (1)(a) has given rise to a fourth
pillar known as media or press. It plays the vital role of a conscious keeper, a watchdog of
the functionaries of society and attempts to attend to the wrongs in our system, by bringing
them to the knowledge of all, hoping for correction. Article 19(1) (a) of the Arka Santorin
Constitution, which gives freedom of speech and expression includes within its ambit,
freedom of press. The existence of a free, independent and powerful media is the
cornerstone of a democracy, especially of a highly mixed society like Arka Santorin. Media
is not only a medium to express one’s feelings, opinions and views, but it is also responsible
and instrumental for building opinions and views on various topics of regional, national
and international agenda. The increased role of the media in today’s globalized and tech-
savvy world was aptly put in the words of Justice Learned Hand of the United States
Supreme Court when he said, “The hand that rules the press, the radio, the screen and the
far spread magazine, rules the country” Freedom of speech plays a crucial role in the
formation of public opinion on social, political and economic matters. Similarly, the
persons in power should be able to keep the people informed about their policies and
projects, therefore, it can be said that freedom of speech is the mother of all other liberties.
2. Keeping this view in mind Venkataramiah, J. of the Supreme Court of Arka Santorin
in Arka santorinn Express Newspapers (Bombay) (P) Ltd. v. Union of India42 has
stated: “freedom of press is the heart of social and political intercourse. The press has now
assumed the role of the public educator making formal and non-formal education possible
in a large scale particularly in the developing world, where television and other kinds of

42
Arka santorinn Express Newspapers (Bombay) (P) Ltd. v. Union of Arka santorin, 1986 AIR 515

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 modern communication are not still available for all sections of society. The purpose of the
press is to advance the public interest by publishing facts and opinions without which a
democratic electorate [Government] cannot make responsible judgments. Newspapers
being purveyors of news and views having a bearing on public administration very often
carry material which would not be palatable to Governments and other authorities.”
3. In R. Rajagopal v. State of T.N43 the Supreme Court of Arka Santorin has held that
freedom of the press extends to engaging in uninhabited debate about the involvement of
public figures in public issues and events. But, as regards their private life, a proper
balancing of freedom of the press as well as the right of privacy and maintained defamation
has to be performed in terms of the democratic way of life laid down in the Constitution.
4. Article 19 of ICCPR confirms that freedom of expression is also a fundamental part of a
democratic society. It elaborates that freedom of expression includes the freedom of the
press and states that “everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all kinds, regardless
of frontiers, either orally, in writing or in print, in the form of art, or through any other
media of his choice.”
5. Under Article 10 of the European Convention on Human Rights, to which the UK and its
other signatories are morally committed, the freedom of the press is paramount. Exceptions
to that freedom may be made only such as are “necessary in a democratic society”,
permissible only to the extent that they correspond to “a pressing social need”, and are
proportionate to the end to be achieved.
6. The Hon’ble Supreme Court in the case of Rajendra Sail v. Madhya Pradesh High Court
Bar Association and Others44, observed that for rule of law and orderly society, a free
responsible press and an independent judiciary are both indispensable and both have to be,
therefore, protected. The aim and duty of both is to bring out the truth. And it is well known
that the truth is often found in shades of grey. Therefore the role of both cannot be but
emphasized enough, especially in a “new Arka santorin”, where the public is becoming
more aware and sensitive to its surroundings than ever before. The only way of orderly
functioning is to maintain the delicate balance between the two. The country cannot
function without two of the pillars its people trust the most.

43
R. Rajagopal v. State of T.N, 1995 AIR 264
44
Rajendra Sail v. Madhya Pradesh High Court Bar Association and Others, 2005 AIR SC 2473

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7. The Supreme Court has expounded that the fundamental principle behind the freedom of
press is people’s right to know. Elaborating, the Supreme Court opined, “The primary
function, therefore, of the press is to provide comprehensive and objective information of
all aspects of the country’s political, social, economic and cultural life. It has an educative
and mobilising role to play. It plays an important role in moulding public opinion”
8. In Shamim Rehmaney v. Zinat Kausar Dehalvi and others45, the Hon'ble Supreme
Court has observed that the course of justice must not be interfered with by publications
which constitute opinions upon the merits of the case or create an atmosphere for or against
an accused person before his or her case is finally decided. As per the Hon'ble Court, all
that is permitted is fair and accurate reporting of the proceedings of courts of law and once
the courts of law have dealt with the facts of a case and judgment is finally pronounced, the
Press and public are at liberty to express their views on the evidence and to give their own
interpretation subject to the risks of proceedings for defamation by the injured parties.
B. ROLE OF MEDIA: BRINGING JUSTICE
1. The role of media in justice can be understood by the lines of Jeremy Bentham. “Where
there is no publicity there is no justice. Publicity is the very soul of justice.” Trial by Media
is a phrase used when the Media takes a particular interest in an ongoing case. There could
be many reasons for the same one being the crime in itself was sensational or involving a
celebrity or a high-profile personality as accused or the victim.
2. The right under Art 19(1) (a) includes “the right to information and the right to disseminate
through all types of media, whether print, electronic or audio-visual means”46. It was further
stated in Hamdard Dawakhana v. Union of India47, “that the right includes the right to
acquire and impart ideas and information about matters of common interest.” However, in
Re: Harijai Singh and Anr. v. In Re: Vijay Kumar 48The Supreme Court stated the scope
of freedom of the press as “an essential prerequisite of a democratic form of government”
3. In the Jessica Lal murder case49the media took great pride in helping to bring justice to
the people. Even though the accused had been convicted by the Trial Court, the media in
the case stirred up public opinion against him and held him guilty. Via candlelight vigils
and opinion polling, the media took on the role of enforcing justice and ensuring that the
accused were punished. For a democratic nation like Arka Santorin to function at its full

45
Shamim Rehmaney v. Zinat Kausar Dehalvi and others, 1971 Crl.L.J. 1586,
46
Romesh Thapar v. State of Madras 1950 SCR 594
47
Hamdard Dawakhana v. Union of Arka santorin 1960 (2) SCR 671
48
Re: Harijai Singh and Anr. v. In Re: Vijay Kumar,(1996) 6 SCC 466
49
Siddharth Vasghish @Manu Sharma v. NCT Delhi , (2010) SC 1

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 potential, the support and participation of the people is important and for their participation,
they need to know what is happening in the country. Such information reaches the
individuals through mass media.
4. The media shows the reality not a fairy tale media conveys the truth and influences the
minds in the right way by showcasing only the reality Transparency is a hallmark of a good
democracy50: Transparency is one such ethic that is to be maintained and followed in order
to keep the peoples’ faith in the judiciary strong.
5. Purpose of the law fails if it is not known to the public. In the absence of the legal awareness
spread through the mass media, the public remains unaware of their right. This unawareness
leads to legal ignorance, and sometimes the legal ignorance becomes the offence. It is
common in our society that whatever we keep on doing from the time at large it seems to
be correct, although it is legally wrong. In the same way, the law becomes diluted on the
ground of ignorance. In Santosh Kumar Singh v. CBI51, Santosh Kumar, son of an IPS
officer, raped and killed his colleague “Priyadarshini Mattoo”. Press played an important
role in this case. Accused was acquitted at the first trial but after the interference of the
media, the Delhi High Court convicted the accused after span of 7 long years. Also media
played a significant role in the case of Dr. Rajesh Talwar v. CBI52, popularly known as
Aarushi Talwars Murder Case by highlighting the loopholes in the case by which the police
authorities were forced to take serious action. This case became a huge sensation for the
nation as it uncovers the double murder of 16 year old girl and their domestic help. The
Arka santorinn media had made a sincere effort to bring this issue to the forefront of the
national agenda. All over the world, the impact of media and social media has been
witnessed in recent years.
6. In the case at hand the accused had committed a heinous crime, i.e. Rape against a women
.The women who is physically disabled .She is being blind. Accused doesn’t cared about
her condition, tarumma that she will go through and how the incident would degrade her
reputation. So these publications would not vitiate the trial .It would help the people to
know the proceeding and rights and would generate their belief in the judiciary. These
publication would not vitiate trial.

50
Herculean task ahead for judiciary to restore lost trust of people, , THEWEEK.IN ,
https://www.theweek.in/news/India/supreme-court-four-justices-press-conference-problems-with-sc.html
51
Santosh Kumar Singh v. CBI,C.A No.87 of 2007
52
Dr. Rajesh Talwar v. CBI, (2012) 4 SCC 245

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 PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this
Hon’ble court be pleased to:

1. Declare conduction of TIP as constitutionally valid

2. Declare TIP as a valid and admissible evidence in the present case.

3. Declare Section 3 of Criminal Procedure (Identification) Act, 2022 constitutionally valid.

4. Dismiss the Appeal of appellant for issuance of a direction to refrain from publishing details
of a criminal case and stories about the accused.

AND/OR

Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience

All of which is most humbly and respectfully submitted

Place: S/d …………

RESPONDENT

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