FIRST CLC MOOT COURT, SEMESTER VIII HILSR, JAMIA

HAMDARD
BEFORE THE HON’BLE SUPREME COURT
IN THE MATTER OF
NGO ( SAMAAN ADHIKAR) PETITIONER
STATE RESPONDENT
ON SUBMISSION TO THE HON’BLE SUPREME COURT
UNDER ARTICLE 136 SPECIAL LEAVE PETITIONER
MEMORIAL ON BEHALF OF THE PETITIONER DRAWN AND
FILED BY THE COUNCELS OF PETITIONER
INDEX
TABLE OF CONTENTS
STATEMENT OF JURISDICTION

The Counsel for the Petitioner, NGO (SAMAAN ADHIKAR) hereby humbly
submit to this Hon’ble court’s Jurisdiction under Article 136 of The Constitution
of India.
The Petitioner would like to humbly submit that this SPECIAL LEAVE FOR
APPEAL IS NOT MAINTAINABLE.
STATEMENT OF FACTS
1. Srishti a young advocate on one such night 17 January 2020 around 9:30
p.m. coming from her scooty.

2. When she was driving four men asked for her help beside the Highway
they said they tourists they need help because one of their friend in
injured very badly at a distance place.

3. She came with them for help out of generosity but later two of them
started touching her in a wrong way, she got scared and slapped one of
them, they became angry and dragged her at the distance place and
raped her one by one.

4. To hide their crime they put petroleum in her body and burnt her alive
till she was dead and ran away towards near by the village.

5. On 18th January 2020 the body was found at an underpass on the Ankara
Bendakal National Highway by a farmer 6 a.m.

6. On 23rd January 2020 the police arrested those four men whose named
are Javed, Rajesh, Naveen and Keshav.

7. The news became viral all over the nation people demand justice for
shrishti with candle lights in hand and Marches.

8. On 3rd February 2020 the news came that those for men had been shot
dead by the police while they were taken to the court.

9. According to the Investigation Incharge stated that Naveen and Keshav

snatched the revolvers from the constable and jumped out of the van,
fired two rounds in the air and other two also tried to escape.

10.The police claimed that they have no other option and had to shoot
down the four accused otherwise the accused would have fled.

11.The country was happy with the action of police and give them a Tag of “
Act of bravery” but an NGO named as “ Samaan Adhikar” filed and
Petition to the Hon’ble High court of Ankara that the action by the police
is violation of Human Right and Fundamental Right.
12.The High court give the Judgement in the favour of police that the police
had no other option but to shoot the four accused otherwise they would
have fled because of which role of the police have come in question and
it was a sudden reflex to the counter situation which arose in front of
them.

13.But the NGO was not satisfied with Judgement of High court so, the NGO
appeal Hon’ble Supreme court by filing a Special Leave Petition on the
contention of violation of Human Right as well as Fundamental Right.
 ISSUE RAISED:-

A) Whether the NGO has locus standi to file an SLP before the Hon’ble
Supreme Court?

B) Whether the action of Police constitutes violation of fundamental rights

of the accused?

C) Whether the action of Police constitutes an act of extra-judicial killing?

SUMMARY OF ARGUMENTS-

ISSUE - 1.

A) Whether the NGO has locus standi to file an SLP before the Hon’ble
Supreme Court?

 Special Leave Petition can be filed when there is a substantial

constitutional question and Gross injustice both of the things arose here.

 Article 14 of the constitution is violated here equality before law which

means that they are equal rules for everybody and accused would have
been treated in the prescribed manner as given under the laws.

 Article 19 of the Constitution is violated here freedom of Speech and

Expression which say that everyone in the country has the right to
express their self so, the accused would have also have given a chance to
defend their case in the court.

 Article 21 of the Constitution is violated as well in his case because

according to Article 21 “Protection of life and Personal liberty is given to
every individual” no person shall be deprived to his life or personal
liberty, except according to procedure established by law, this
Fundamental Right is for every citizen and foreigners. Here the procedure
of established law is not followed it is violated So, here the NGO has the
Right to life SPECIAL LEAVE PETITION because,

Firstly their PIL is rejected in Hon’ble High Court they have the Right
to appeal if they are not satisfied with the result.

Secondly the SPECIAL LEAVE PETITION can be filed when their is

violation of right in the Constitution and here Article 14,19 and 21 is
violated and Gross injustice as well which has also accured because the
prescribe manner of law in not followed here.
 ISSUE – 2.

B) Whether the action of Police constitutes violation of fundamental

rights of the accused?

 YES, the right of accused is violated because being a accused it does not
change right of a person even if they are accused still they have the right to
express them self before the Judge.
 ISSUE -3.

C) Whether the action of Police constitutes an act of extra-judicial killing?

 The Police has the right to injured and kill the person for the sole and only
purpose of self defence or where it is imminently necessary for the
maintenance of peace and order but this should last solution when there is
threat of life.
 The reason behind this action is public support because it emerges out of
lack of faith in the Judiciary because many believe that the court will not
provide timely Justice that should be improved because killing accused
encounter is not the solution and violation of Human Right and
Fundamental Right as well.
 The act of police Constitutes as an act of extra Judicial Killing because the
cases of encounter are increasing.
 In PUCL Vs. STATE OF MAHARASHTRA (2014)
The Supreme Court was dealing with
Writ Petition questioning the genuineness of 99 encounters killing by
Mumbai police in which 135 alleged criminals were shot dead between
1995 and 1997.
 The act of police will come under Extra Judicial Killing because of any
accused killed by the authority of law before giving him the punishment,
before it is proved that they are the liable of Rape and giving them
punishment in a prescribed manner of law will come under Extra Judicial
Killing.

DATA OF ENCOUNTERS
KILLED IN ENCOUNTER ARRESTED
Meerut 61 4814
Bareilly 07 2367
Agra 14 4519
Gorakhpur 04 0556
Kanpur 08 0471
Lucknow 10 0315
Noida 06 0910
 TOP CRIMINALS KILLED IN ENCOUNTERS
CRIMINALS REWARDS CASES

Vikas Dubey Rs 5 lakh 60

Balraj Bhati Rs 2.5 lakh 20

Shakeel Ahmad Rs 2.5 lakh 25

Kamal Bahadur Rs 2.5 lakh 10

Laxman Yadav Rs 1.5 lakh 34

ADVANCED ARGUMENTS
 Indian law does not explicitly state that encounter killings are
permissible. Going against the norm, different High Court
decisions and National Common freedoms Commission (NHRC)
rules limit the utilization of police's overabundances. However, the
actual situation is drastically different. Legal professionals cite a
number of instances in which the victims did not receive justice. A
lawless ecosystem is also encouraged by politicians glorifying
extrajudicial killings.

 Information postponed in the Lok Sabha on July 26 uncovered that

the nation over, 82 individuals were killed in police experiences
during the 2020-2021 monetary, which leaped to 151 during the
2021-2022 financial. Even though the year's data show an increase
in encounters, India's history since the 1990s has been full of fake
encounter killings.

 The NHRC recorded 1,782 cases of fictitious encounters between

2000 and 2017. In a similar vein, between the years 1993 and
2009, the NHRC was notified of at least 2,560 cases of
perpetrators. Of them, 1,224 were phony.

 “There are some [IPC/CrPC] sections that, depending on the

circumstances, may give officers involved in encounters specific
rights to deal with criminals,” Arif J wader, a Delhi-based lawyer
and activist, tells Outlook. According to the attorney, police are
known to abuse their privileges frequently.

 The killing was necessary to protect themselves from being

attacked by the alleged criminals or to exercise their "right of
private defense," according to officers' most common justification.

 In accordance with Section 96 of the Indian Penal Code (IPC), it is

not illegal to act in the exercise of one's "right of private defense."
Nevertheless, Area 99 expressly presages that the guard isn't
accessible for incurring more mischief than is needed for
safeguard. To put it another way, there should be a fair amount of
force used.
  In Extra Judicial Execution Victim Families Association (EEVFAM)
and Others, the Supreme Court. Against Union of India and
Others, states that the right of self-preservation or private defense
falls in a single bin, and utilization of extreme force or retaliatory
force falls in another bushel. While the police have the right to
private or self-defense, they become aggressors and commit
crimes that are punishable by law if they go beyond these rights
by using excessive force or punitive measures.

 The lawyer states, "Unfortunately, there are times when using

extreme force or retaliation results in the death of the first
offender."

 In the EEVFAM case, the Supreme Court said, "There is a

qualitative difference between use of force in an operation and
use of such deadly force that is akin to using a sledgehammer to
kill a fly;" The first is self-defense, while the second is retaliation.

 In a similar vein, the Supreme Court made the observation in

Darshan Singh v. State of Punjab and Anr. that "...it is also settled
position of law that a right of self-defense is only right to defend
oneself and not to retaliate." Retribution is not permitted.

 According to the NHRC's guidelines from 2010, police are required

by law to file an FIR whenever there is a criminal complaint against
them that establishes a credible case of homicide.

 The police frequently use the excuse that they opened fire
because the accused was attempting to evade arrest as another
cover for extrajudicial killings. Even though Section 46(3) of the
Cr.PC governs this side, it does not include killing someone unless
the victim is accused of a crime that carries a death sentence or a
life sentence.

CASE :- Om Prakash & Ors. v. State of Jharkhand & Anr. A Supreme

Court decision, insists that "It is not the duty of police officers to kill the
accused merely because he is a feared criminal."
 "Without a doubt, police need to capture the accused and set them
up being investigated," the judgment further peruses. “This court
has more than once admonished combative police work force, who
sell hoodlums and project the occurrence as an experience... Such
killings… are not recognized as lawful by our law enforcement
organization framework. State-sponsored terrorism is what they
are, it adds.

 In 2010, the NHRC issued some guidelines. When a specific

complaint is made against the police alleging conduct of a criminal
act on their part that sets out a cognizable case of culpable
homicide, it is required to file an FIR under the appropriate sections
of the IPC. This requirement can be found in a statute from the list.
The rules suggest that the state CBCID (Wrongdoing Branch,
Wrongdoing Examination Division) or another specific exploring
office must probe the matter.

 After taking into consideration recommendations made by the

counsels, the NHRC, and other stakeholders, the Supreme Court
issued 16 guidelines in the landmark PUCL v. State of Maharashtra
case to be followed in the investigation of deaths following police
encounters. According to one of the guidelines, the CID or a police
team from another police station must conduct an independent
investigation into the incident or encounter under the direction of
a senior officer (at least one level above the head of the police
party involved).

 Uttar Pradesh Police’s encounter on Thursday(13 April 2023) in

Jhansi in which gangster turned politician Atique Ahmad’s son
Asad and an accomplice, both wanted in the Umesh pal murder
case, were killed has raised questions on the law for encounters in
India. Killings in police encounters affect the credibility of rule of
law and the administration of the criminal Justice system, the
Supreme Court had said in 2014 Judgment while issuing a slew of
guidelines to be followed in matters of investigating police
encounters which have led to death or grievous injury.

 Narmada Bai-the petitioner herein, mother of Tulsiram Prajapati-

the deceased, who, according to her, was killed on 27/28.12.2006
in a fake encounter by respondent Nos. 6 to 19, who are the
 officials of Gujarat and Rajasthan Police, somewhere on the road
going from Ambalimal to Sarhad Chhapri, has filed the above writ
petition under Article 32 of the Constitution of India praying for
issuance of a writ of mandamus or in the nature thereof or any
other writ, order or direction directing the Central Bureau of
Investigation (in short `the CBI') to register a First Information
Report (in short `FIR') and investigate into the fake encounter
killing of her son and submit its report to this Court. In the same
petition, she also prayed for compensation for the killing of her son
in a fake encounter thereby causing gross violation of Articles 21
and 22 of the Constitution.

 PRAYERS
 The SPECIAL LEAVE PETITION shall be accepted by the Hon’ble
Supreme court.
 There is violation of Article 14,19 and 21 of the Constitution.
 The encounters shall be prohibited because it is not a solution.
 The punishment shall be given in a prescribed manner of law.
 Positive reinforcement: using shortcuts to get quick result is not a
solution.
 The extra-judicial-killing are increasing which shall be controlled.
 The police forces are very often rewarded and awarded for
encounter which is not a good concept for the Justice. This is the
last option which using more days very oftenly.
 The reason is workload which shall be done in a particular manner.
 It is the responsibility of the police to follow the constitution
principle and uphold the right to life of every individual whether
an innocent one or a criminal.
 State Human Right Commission( NHRC) must be immediately
informed of the encounter death.
 Disciplinary action must be initiated against the police officer
found guilty of wrongful encounter and for the time being that
officer must be suspended.
 The guidelines should be followed by the police for encounter.