BTC 03

BEFORE THE HON’BLE HIGH COURT OF JUDICATURE AT

ALLAHABAD

WRIT PETITION FILED UNDER ARTICLE 226 OF THE CONSTITUTION,1950

Writ Petition No.___/2035

Ainetic Corporation & Another…………………….……….PETITIONER
v.
Motor Accident Claims Tribunal & Others ……….………RESPONDENT

Writ Petition No.___/2036

State of Uttar Pradesh ………………………………..….. PETITIONER
v.
Union of India………………….……………………………. RESPONDENT

APPLICATION FILED UNDER SEC. 482 CODE OF CRIMINAL PROCEDURE, 1973

Criminal Application No.___/2036

Raymond Sketcher & Others ………………………………..APPELLANT

v.
State of Uttar Pradesh………………………………...........RESPONDENT

Memorial Submitted
On Behalf of The Respondent
By
The Counsel of Appellant
INDEX

1. TABLE OF ABBREVIATIONS………………………………………….3

2. INDEX OF AUTHORITIES………….…………………………………..5

i. Statutes Referred ……………………………………………………..………….….…..5

ii. Books, Journal and Articles …………………………………………………..…….….5

iii. Dictionary referred …………………………………………………………..……..….5

iv. Citation pattern ………………………………………………………………..……..…5

v. Cases referred………………………………………….…………………………..…… 5

3. STATEMENT OF JURISDICTION…………..……….………………..10

4. STATEMENT OF FACTS………………………...……………………..11

5. ISSUES PRESENTED……………………….………..………………….13

6. SUMMARY OF ARGUMENTS………………………………………..14

7. ARGUMENTS ADVANCED…………………………..………………16

That The Writ Petition Challenging The Jurisdiction Of The Motor Accident Claims Tribunal
Is Maintainable In Law?

Whether The Writ Petition Filed By A State Government Challenging The Vires Of A Central
Legislation Is Maintainable In Law?

Whether The Provisions Of The Smart City (Regulation Of Product Liability) Act Are Ultra
Vires The Constitution?

Whether The Petition Filed Under Section 482 Of The Code Of Criminal Procedure Is
Maintainable In Law?

1
LIST OF ABBREVIATIONS

SR No. ABBREVIATION FULL FORM

1 A. Appellant
2. AIR All India Reporter
3. All. Allahabad
4. ACJ Accident Claim Journal
5. AI Artificial Intelligence
6. Anr. Another
7. Art. Article
8. A.P. Andhra Pradesh
9. A.W.C. Allahabad Weekly Cases
10. CrPc. Code of Criminal Procedure
11. Cri. Criminal
12. CAL Califonia
13.
14. Co. Company
15. C.A. Civil Appeal
16. Const. Constitution
17. Cl. Clause
18. CLA Corporate Law Advisor
19. Edn. Edition
20. ER England Reporter
21. Hon’ble Honorable
22. HLC Higher Learning Commission
23. ILR Indian Law Reporter
24. KB Kings Bench
25. Ltd. Limited
26. IPC Indian Penal Code
27. Jhar. Jharkhand
28. P. Parah
29. Ors. Others
30. Pg. Page

2
31. DB Display Board
32. PIL Public Interest Litigation
33. SC Supreme Court
34. SCC Supreme Court Cases
35. SCR Supreme Court Recorder
36. SCW Supreme Court Weekly
37. RLW Rajasthan Law Weekly
38. U.O. I Union of India
39. V. Versus
40. W.P. Writ Petition
41. & And
42. Sec. Section
43. p. Paragraph
44. Fact Sheet Moot Proposition
45. Ker Kerala
46. MACT Motor Accident Claim Tribunal
47. MV Motor Vehicle
IT Information Technology
U.P. Uttar Pradesh

3
LIST OF AUTHORITIES

Statutes Referred

1. The Constitution of India, 1950.

2. The Indian Evidence Act, 1872.
3. Code of Criminal Procedure,1973.
4. Indian Penal Code, 1860.
5. Information Technology Act,2000.
6. The Motor Vehicles Act, 1988.
7. The Smart Cities (Regulation of product Liability) Act, 2034.
8. U.P. Industrial Area Development Act – 1976.
9. Copyrights Act, 1957

Book, Journals, Articles

Books
Journals
Article

Dictionary referred

Citation pattern

Cases Cited

Cases Cited Page No.

State of U.P. V. Raj Narain, 1975 SCR (3) 333(India).

Dinesh Trivedi, MP and Another v. Union of India, (1997) 4 SCC 306(India);

The Chief Information Commissioner & Anr. v. State of Manipur &

Anr.,(2011) 15 SCC 1 (India).
Bhudan Singh v. Nabi Bux,

4
Re Coe's Estate Ebert et al v. State et. al

5
STATEMENT OF JURISDICTION

I. Writ Petition No.___/2035

The Appellants, Ainetic Corporation and Art Intel Corporation have approached this Hon’ble
Court under Art. 226 of the Indian Constitution,1950. The, Appellants The Motor Vehicle

6
Claim Tribunal along with the parents and guardians of the dead and injured children have
humbly submitted to the jurisdiction of this Hon’ble Court.

II. Writ Petition No.___/2036

The Appellant in this writ petition is State of Uttar Pradesh has approached this Hon’ble Court
under Art. 226 of the Indian Constitution,1950. The Appellant humbly submits to the
jurisdiction of this Hon’ble Court.

III. Criminal Application No.___/2036

The Appellant, Mr. Raymond Sketcher, Ms. Nafisa Fareed, Mr. Lawrence Bosch, Mr. Avinash
Iyer, Mr. Sumeet Gupta has approached this Hon’ble Court under Sec. 482 of Criminal
Procedure, 1973. The Respondent, State of Uttar Pradesh humbly submits to the jurisdiction of
this Hon’ble Court.

STATEMENT OF FACTS

Safecargo trucks were state of the art autonomous trucks that was manufactured by Ainetic
Corp., and operated by Smalogis Corp. and its software was developed by ArtIntel Corp.

THE ACCIDENT

7
On 2nd July 2035, Safecargo trucks entered the smart city of Greater Noida on its way to Kanpur
which was driven by Mr. Gulshan Singh. As per the protocol he shifted the truck to autonomous
mode as the truck cruised at 85km/hr.in the elevated section of the city. The road was
surrounded by a 25-foot drop on the left edge of the road. There was a large pool of sludge that
had spilled due to the malfunctioning of the sewage system from a smart building whose
sensors had broken down on which the truck began to skid. Also, at the same time a school bus
which was driven by Ramesh Thakur approached from other side of the road.

The truck crashed into the school bus from the front as well as from the rear fishtail thereby
hitting 45 students out of which 20 suffered from grievous injuries from whom 16 were
permanently disabled. 25 students succumbed to injuries. In the same accident a cow who was
attached to a local smart temple was fatally hit and died but cargo was intact and there was no
loss to goods.

POST ACCIDENT

A journalist reported that the sensors in the sewage system broke down frequently and the
engineer Ms. Talveen Meena had failed to replace them. She stated that the building was
maintained by Sensorship Corp. the sensors supplied were of low quality & its replacement did
not function well. Ramesh Thakur admitted that he took the freight road to avoid congestion.

THE INVESTIGATION AND CHARGESHEET

Robotic cops designed by ArtIntel Corp., arrived at the scene of the offence and collected
evidences. A Fir was lodged with Crime No. 1212 of 2035 by eyewitness. The investigation
followed by the final report accused the following persons guilty,

[A] CEO of Ainetic Corp., Mr. Raymond Sketcher(A1), CEO of Smalogis Corp, Ms. Nafisa
Fareed (A2) under Section 302 IPC;

[B] The CEO of ArtIntel Corporation, Mr. Lawrence Bosh(A3), Project Head of team, Mr.
Avinash Iyer (A4), CEO of Greater Noida Smart City, Mr. Sumeet Gupta(A5) under section
304 IPC;

[C] Mr. Gulshan Singh(A6) and the Engineer, Ms. Talveen Meena(A7) under sec. 304A IPC.

The Charge sheet filed brought forward the relevant details which were inferred from the expert
report commissioned by the Uttar Pradesh police department. (1) The truck was deliberately
programmed to privilege the freight over the lives of the people in case of an accident, which

8
in turn leads to lower insurance cost with zero-risk character. The advertisements for the sale
of the same also boasts about its fuel efficiency due to intelligent and autonomous technology.
(2) Evidence gathered during investigation was supplied by the robotic cops who had artificial
intelligence which was capable of not only identifying the persons responsible but also capable
of levying the offences committed by them which could not be ordinarily identified by human
capability. It was inferred that the death of the school children was a programmed event and
not a rash and negligent act.

SMART CITIES (REGULATION OF PRODUCT LIABILITY) ACT, 2034

National Smart City Technology Confederation (NSTC), which was a trade association of
software and hardware companies wanted product liability to be curtailed in Indian in respect
of artificial technology and robotics. Under pressure from NSTC the central government passed
the Smart Cities (Regulation of product liability) Act, 2034. The provisions of the act limited
the total liability for any adverse event to Rupees 1 crore irrespective of the number of people
who died or the total value of the product damaged. It provided for the commissioner who
possessed all the powers that was vested in the civil court and he would be assess compensation
to be paid. He also has the powers that exempt him from the provisions of the RTI Act, 2005
and to declare any information or document related to information technology as classified in
case of adverse event in the smart city. The jurisdiction of all the courts and tribunals were
excluded in matters over which commissioner had power to try the case.

PETITION FILED

1. A joint petition was filed by the parents of the dead and injured students for
compensation under the Motor Vehicle Tribunal Act,1988 against Ainetic Corp.,
Smalogis Corp., and ArtIntel Corp. The above named further filed a writ petition in
Allahabad HC to nullify the claims made against them.
2. The Govt. Of Uttar Pradesh filed a writ petition before Allahabad HC challenging the
validity of the Smart Cities (Regulation of the product liability) Act,2034.
3. A1 to A5 filed petition before Allahabad HC under section 482 CrPc. to prevent abuse
of powers of the court and quash the criminal proceedings against them.

ISSUES PRESENTED

9
 I. WHETHER THE WRIT PETITION CHALLENGING THE
JURISDICTION OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL IS
MAINTAINABLE IN LAW?

II. WHETHER THE WRIT PETITION FILED BY A STATE

GOVERNMENT CHALLENGING THE VIRES OF A CENTRAL
LEGISLATION IS MAINTAINABLE IN LAW?

III. WHETHER THE PROVISIONS OF THE SMART CITY (REGULATION

OF PRODUCT LIABILITY) ACT ARE ULTRA VIRES THE
CONSTITUTION?

IV. WHETHER THE PETITION FILED UNDER SECTION 482 OF THE

CODE OF CRIMINAL PROCEDURE IS MAINTAINABLE IN LAW?

ARGUMENTS ADVANCED

10
 1. THAT THE WRIT PETITION FILED BY A STATE GOVERNMENT
CHALLENGING THE VIRES OF A CENTRAL LEGISLATION IS NOT
MAINTAINABLE IN LAW?
1. HIGH COURT DOES NOT HAVE ORIGINAL JURISDICTION.
2.

2. THAT THE PROVISIONS OF THE SMART CITY (REGULATION OF

PRODUCT LIABILITY) ACT, 2034 ARE NOT ULTRA VIRES THE
CONSTITUTION?
3.1. PROPER SEPERATION OF POWERS
3.2. RTI
1. The Smart City Act, 2034 vests power with the commissioner to declare any
information and document or material relating to technology, equipment involving any
adverse event in the city as confidential. The same shall not be considered as contrary
to the provisions of the RTI act and thereby the appellants humbly contends that it is
not in violation to the provisions of the constitution.
2. When Sec. 8 exempts certain information from being disclosed it should not be
considered as a fetter on the right to information but as an equally important provision
protecting other public interest essential for the fulfilment and preservation of other
ideals.1 The information relating to smart product has a immunity from disclosure
under Sec 8(d)2 of the RTI Act.
Intellectual property includes copyrights. Computer programme is a literary work3
under Sec 2(o) of the Copyrights Act,1957. Software which is a computer programme
is a copyright of the third party and is protected from disclosure under Sec 8(d) of the
RTI Act. The matter held by the third party if disclosed would effect his competitive
interest is covered under the exceptions provided under Sec 8(d) of the RTI Act. In
the instant case, Art Intel held the copyright to the software designed and developed
for the Safecargo truck which cannot be disclosed.

1
State of U.P. V. Raj Narain, 1975 SCR (3) 333(India).
2
Sec. 8(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of
which would harm the competitive position of a third party, unless the competent authority is satisfied that larger
public interest warrants the disclosure of such information.
3
"literary work" includes computer programmes, tables and compilations including computer [databases].
11
 3. RTI has been derived from freedom of speech and expression which is a fundamental
right subject to the overriding interest of public security and secrecy.4 The preamble
to RTI Act specifically states that purpose of RTI is to harmonise two conflicting
interest. The act is meant to harmonise the conflicting interest of the Government to
preserve the information with the right of the citizens to know the functioning of the
government process in such a way to preserve the democratic ideal.5
Right to information is not an unfettered constitutional right, albeit a right available
within the framework of the RTI Act, which means that the right is subject, among
other conditions, to the exclusions, restrictions and conditions listed in the Sections 8
of the RTI Act. In support, the appellants have relied upon Re Coe's Estate Ebert et
al v. State et. al6, Bhudan Singh v. Nabi Bux7, Kailash Rai v. Jai Ram8 and Dollfus
Mieg et Compagnie S.A. v. Bank of England9 that information sought when exempt
under Section 8 of the RTI Act cannot be disclosed.
4. The provisions RTI Act is to divide `information' into the three categories.10 They are
(i) Information under Sec. 4(1)(a) and (b) of the RTI Act
(ii) Other information held by public authority (that is all information other than
those falling under clauses (b) and (c) of Sec. 4(1) of RTI Act.

(iii) Information which is not held by or under the control of any public authority
and which cannot be accessed by a public authority under any law for the
time being in force. Information under the third category does not fall within
the scope of RTI Act.

Commissioner though falling in the purview of ‘public authority’ does not hold
under him any information, document or technology relating to the products
involving smart technology and such falls under the abovementioned third category
of information.

4
Dinesh Trivedi, MP and Another v. Union of India, (1997) 4 SCC 306(India); Raj Narain v. Union of India,
A.I.R. 1975 SC 865(India).
5
The Chief Information Commissioner & Anr. v. State of Manipur & Anr.,(2011) 15 SCC 1 (India).
6
3 33 Cal 2d. 502
7
4 (1969) 2 SCC 481(India).
8
502 5 (1973) 1 S.C.C. 527(India).
9
6 (1950) 2 All. E.R. 611
10
CBSE v. Aditya Bandopadhyaya, (2011) 8 SCC 497(India).

12
 3. THAT THE WRIT PETITION CHALLENGING THE JURISDICTION OF
MOTOR ACCIDENT CLAIMS TRIBUNAL IS MAINTAINABLE IN LAW.
It is humbly asseverated that in a Writ Petition, Petitioner should have a legal standing. 11
This “Legal Standing” has a quintessential connotation and it is a condition precedent
for the maintainability of the Writ Petition before the court. As the Supreme Court of
India has observed “The requirement of locus standi of a party to litigation is
mandatory; because the legal capacity of the party to any litigation whether private or
public action to relation to any specific remedy is sought for has to be primarily
ascertained at the threshold”12 Therefore it becomes imperative to show that the
appellant in the instant case, Art Intel and Ainetic Corp. have legally enforceable rights,
recognized under the constitution.

3.1 THAT THE APPELLANT HAS LOCUS STANDI.

1. The power of the High Court to entertain petition under Art. 226, is an original
power.13 The jurisdiction under Art. 226 is to be invoked when injustice or
prejudice is caused to a party14. The writ petition filed by Ainetic Corp. and
ArtIntel Corp. under Art. 226 of the India Const. against the petition filed by the
parents and guardians of the dead and injured children for settling of claims if any is
to be determined by the Commissioner the Smart Cities (Regulation of Product
Liability) Act, 2034 and not by the Motor vehicle claim tribunal is maintainable in
law.
2. The Smart Cities Act was enacted with an objective to deal with cases especially
arising out of the use of Product involving Artificial Intelligence and robotics. For
the same a commissioner was appointed who had the powers to adjudicate upon
matters arising from such products in smart cities. Where there is a special act
dealing with specific subject, resort had to be that act instead of general act
providing for the matter connected with the specific act, the rule that general
provision should yield to the specific provision is to be applied15.
3. The Ainetic Corp. and ArtIntel Corp. has a fundamental right to be tried by an
appropriate forum. The Commissioner in the present case, is vested with all the

11
HSEB v. Ram Nath ,(2004) 5 SCC 793(India).
12
Janta Dal v. H.S.Choudhary AIR 1993 SC 892(India).:(1992)4 SCC 305(India).
13
14
A. Srinivas v. Govt. of A.P., 2002 (2) A.L.D. 402(India).
15
Suresh Nanda v. C.B.I. 2008 Cri LJ 1599(India).

13
 powers of a civil court. He would assess compensation payable and adjudicate
following the principles of natural justice and it is an appropriate forum. The
exclusion of the jurisdiction of the civil courts is therefore not to be readily inferred
and such exclusion must either be “explicitly expressed or clearly implied”. 16
4. The Apex Court in the case of Namit Sharma v. Union of India17 held one’s
fundamental right under Art. 14 to be adjudicated by an appropriate forum which
exercises judicial power in impartial and independent manner with consistence with
the principles of adjudication. In the present case the commissioner is an
appropriate authority to exercise jurisdiction in the matter. Hence, the principle of
forum non conviens shall apply.
5. It is humbly submitted before the Hon’ble High Court that sufficient territorial
jurisdiction and necessary cause of action existed for the appellants to file such
petition. In the instant matter as already stated the cause of action arises within the
territorial bounds of the state and therefore the High Court has sufficient
jurisdiction under Art. 226 to entertain the petition and issue the appropriate writ to
the authority for redressing the grievance of the appellant.18
6. It is humbly submitted that maintainability of writ petition for enforcement of
fundamental rights can be questioned only on the ground of laches19, delays and
acquiescence,20 drafting of petition in a dignified manner,21 malicious in nature,22
where disputed question of facts are involved or question of law has been raised in
the abstract23 or enforcement of private or contractual rights are sought to be
enforced24. In the instant case, none of the aforementioned exception exists. The
appellant has been filed in time, question of fact is involved and fundamental rights
are sought to be enforced.

16
Secretary of state v. Mask & Co. A.I.R. 1940 PC 105(India), Gurudwara Prabhandak v. Shiv Ratan Dev, A.I.R
1955 SC 576(India).
17
18
Mosaraf Hossain Khan v. Bhageeratha Engg. Ltd., (2006) 3 SCC 658 (India), Rahid K.s. v. Income Tax
investigation commn. (1954) SCR 739(India), Union of india v. Adani Exports Ltd. (2002) 1 SCC 567(India).
19
Rabindra Nath Bose and others v. Union of India and others, AIR 1970 SC 470 (India).
20
Halsbury laws of England, (3 rd Edn.) ; R. v. Diary Produce Quota Tribunal (1990) 2 AII ER 434: (1990) 2
WLR 1302.
21
M.K Mallick, Law and Practice, 234, (12th ed.), 2012.
22
S.A. Kini v. Union of India, AIR 1985 SC 893(India) : (1985) 3 SCR 754(India). : 1985 Supp. SCC 122(¶ 4) ;
Judicial remedies in Public law by Clive Lewis, 2004 Edition, Chapter XI, ¶ 11.005 AT p. 392- 93 ; R.V. Customs
and Excise Commissioner ex parte Cooke and Stevenson, (1970) 1 AII ER 1068.
23
Indian legal and Economic forum v. U.O.I (1997) 10 SCC 728(India).
24
Satish Chandra v. Union of India, AIR 1953 SC 250(India).

14
 7. Where there is a well-founded allegation that fundamental right has been infringed,
alternative remedy is no bar for entertaining writ petition and granting relief25 .
Justice D Y Chandrachud and Justice Indra Banerjee in their judgment asserted
that mere existence of alternate forums where the aggrieved party may secure relief
does not create a legal bar on a High Court to exercise its writ jurisdiction.26 Thus,
the appellant submits before the Hon’ble court that the writ petition is maintainable
in the present case.

3.2 THAT THE COMMISSIONER UNDER THE SMART CITIES (REGULATION

OF PRODUCT LIABLITY) ACT, 2034 HAS JURISDICTION.

1.2.1. THAT THE COMMISSIONER HAS TERRITORIAL JURISDICTION.

1.

1.2.2. THAT THE COMMISSIONER HAS JURISDICTION OVER SUBJECT

MATTER.
1. The exclusion of jurisdiction of civil courts is not to be readily inferred and such
exclusion must either be “expressely expressed or clearly implied”.27
2. Where there is a special act dealing with specific subject, resort should be had to that
act instead of general act providing for the matter connected with the specific act, the
rule that Generalia specialibus non derogant, ‘general provision should yield to the
specific provision’ is to be applied.28
3. In passing the special act, the legislature had their attention directed to the special case
which the Act was meant to meet, and considered and provided for all the circumstances
of that special case; and, having done so they are not to be considered by a general
enactment passed and making no mention of any such intention, to have intended to
derogate from that which, by their own special Act, they had thus carefully supervised
and regulated.29
When the legislature has given its attention of a separate subject, and made provision
for it, the presumption is that a general enactment is not intended to interfere with the

25
State of Bombay v. United Motors Ltd., AIR 1953 SC 252(India).
26
Maharastra Chess Association v. Union of India, 2019 SCC 932(India).
27
Secretary of State v. Mask & Co., A.I.R. 1940 PC 105; Ujjam Bai v. State of U.P., A.I.R. 1962 SC 1621(India);
Musamia v. Rubbari, A.I.R. 1969 SC 439 (India).
28
Suresh Nanda v. CBI, 2008 Cri. L.J. 1599(India).
29
Fitzgerald v. Champneys 2 J&H 31,54.

15
 special provision unless it manifest tat intention very clearly. Each enactment must be
construed in that respect according to its own subject-matter and its own terms.30
Where there is a conflict between a special Act and general Act, the provisions of the
special Act prevails.31
4. In the instant matter it clearly follows that the entire situation has been provided for
by special legislation and there is no need to fall back upon the provision of the
general act. A special provision would keep away the application of the general law.32
A general statute is presumed to have only general cases in view, and not particular
cases which have been already otherwise provided for by the special act.33
5. Lord Wood VC in London and Black-wall Rly v. Limehouse District Board of
Works34 , the legislature in passing a special Act has entirely in its consideration some
special power which is to be delegated to the body applying for the act on public
grounds. Where a general act seems to be a necessary inference that the legislature
does not intend thereby to regulate all cases not specially brought before it.

4. THAT THE PETITION FILED UNDER SECTION 482 OF THE CODE OF

CRIMINAL PROCEDURE IS MAINTAINABLE IN LAW?
4.1 THAT THE APPELLANTS HAVE LOCUS STANDI.

1. It is submitted before the Hon’ble Court that the appellants have locus standi under Sec.
482 CrPC to file the petition for the reason that the appellant have connection with the
instant matter in hand. This has been iterated by the constitutional bench of the Supreme
Court in P.S.R. Sadanantham v. Arunachalan35 and also in Ramakant Rai v. Madan
Rai36, Esher Singh v. State of UP.37

2. The apex court laid following guidelines for the exercise of inherent powers of the high
court under sec. 482 CrPc. At the outset the following principles may be noticed in
relation to the exercise of the inherent power of the High Court which have been
followed ordinarily and generally, almost invariably, barring a few exceptions:-

30
Barker v. Edgar {1898} AC 748,754
31
32
Jogendra lal saha v. State of Bihar A.I.R. 1991 S.C. 1148 (India).
33
Shia Singh v. Sundar Singh A.I.R. 1921 Lah 280.
34
(1856) 26 LJ 164.
35
(1980) 3 S.C.C. 141(India).
36
(2003) 12 SCC 395(India).
37
(2004) 11 SCC 585(India).

16
 (1) That the power is not to be resorted to if there is a specific provision in the Code for
the redress of the grievance of the aggrieved party;

(2) That it should be exercised very sparingly to prevent abuse of process of any Court or
otherwise to secure the ends of justice;38

(3) That it should not be exercised as against the express bar of law engrafted in any other
provision of the Code.39

3. It is significant to mention that in the present case, Hon’ble high court can use its
inherent power to quash the proceedings because it is a settles position of law that high
court can quash the proceedings instituted against the accused if charges are mentioned
in fir, even if accepted in its entirety, do not, in any manner, disclose the commission of
offence alleged against the accused.40 In simply words, if facts and circumstances of the
case do not disclose the commission of the offence alleged against the accused in the fir,
the court can quash the criminal proceedings instituted on the basis of such FIR.41
4. The Apex Court in Rajiv Thapar v Madan Lal Kapoor42 and in State of Bihar v. P.P.
Sharma & Anr43 elucidates when the High Court can quash the criminal proceedings in
the following cases:

i. the material produced by the accused is such that would lead to the conclusion
that/ their defence is based on sound, reasonable and in indubitable facts:
ii. the material produced is such as would rule out and displace the assertions
contained in the charges levelled against the accused:
iii. and the material produced is such as would clearly reject and overrule the
veracity of the allegations contained in the accusations levelled by the
prosecution/complainant.

In such a situation, the judicial conscience of the High Court would persuade it to
exercise its power under Sec. 482 of CrPC to quash such criminal proceedings, for
that would prevent abuse of process of the Court and secure the ends of justice.

38
Gian Singh v. State of Punjab (2012) 10 SCC 303(India).
39
Mohit @ Sonu v. State of Uttar Pradesh (2013) 7 S.C.C. 789(India).
40
Satish Mehra v. State of NCT of Delhi Anr., A.I.R. 2013 S.C 506(India).
41
State of UP v. R.K. Srivastava, A.I.R. 1989 S.C. 2222(India).
42
2013 (3) SCC 330(India).
43
A.I.R 1991 SC 1260(India).

17
 5. The grounds presented by the appellants in its defence stands upon all the conditions
above mentioned. The appellant contends that they were not directly involved in the
accident and that there can be no vicarious liability in criminal law.

4.2.THAT THE HIGH COURT HAS INHERENT POWERS TO QUASH FIR

AGAINST THE APPELLANTS.

Supreme Court clearly held that, in cases where the allegation made in the FIR or the criminal
complaints, prima facie do not disclose the triable offence, there can be no reason as to why
the accused should be made to suffer the agony of a legal proceedings which is bound to
become lame or a sham.44 Therefore, on the basis of the above laid conditions, court can use
its inherent power to quash the instituted proceedings45 against the appellants.

4.2.1. THAT THE CHARGES AGAINST A1 AND A2 UNDER SEC. 302 IS NOT
SUSTAINABLE.

The appellant namely Mr. Raymond Sketcher and Ms. Nafisa Fareed, hereinafter referred
to as A1 and A2 respectively, has filed an application under Sec. 482 CrPC before this
Hon’ble High Court to exercise its inherent power to quash criminal proceedings against
him on the grounds mentioned below.

1. In State Bank of India v. Smt. Shyama Devi46, the Apex Court held that an employer
is not liable for the act of the servant if the cause of the loss or damages arises without
his actual fault or privity and without the fault or neglect of his agents or servants in the
course of their employment. Emphasis has been laid on liability of a master for wrongs
done by the servant if it is in the course of his employment.
2. In the alleged FIR there are not sufficient grounds for proceeding against the accused.
Where the allegation made in the FIR or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima facie constitute the case against
the accused47 and where the uncontroverted allegations made in the FIR and the

44
Raj Kapoor v. State, A.I.R. 1980 SC 258(India); Nagwwa v. Veeranna Konjalgi , A.I.R 1976 SC 1947(India).
45
Y. Abraham Ajith & Ors. v. Inspector of Police, 2004 SCC (Cri) 2134(India).; B.S. Joshi v. State of Haryana,
App. (Cr.) 383 of 2003 (SC) (India)., State of Andhra Pradesh v. P.V. Pavithran, 1990 AIR 1266(India).
46
A.I.R. 1978 SC 1263(India).
47
RP KAPUR

18
 evidences collected in support of the same do not disclose the commission of any
offence and make out a case against the offense.48
3. The dispute between the parties was purely civil in nature, and the criminal justice
system has been set in motion only to pressurize the appellants. In order to buttress the
contention that the High Court would be justified in exercising its powers under
Section 482 of the Code to quash a vexatious criminal complaint to prevent an abuse of
the process of the Court, the petitioners have relied on the judgment of this Court
in Inder Mohan Goswami & Anr. v. State of Uttaranchal and Ors.1, K.L.E.Society &
Ors. v. Siddalingesh2, Baijnath Jha v. Sita Ram & Anr.3, Suneet Gupta v. Anil
Triloknath Sharma & Ors.4 and G. Sagar Suri & Anr. v. State of U.P. & Ors.5
1. Relying on the decisions in Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate &
Ors.6, S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla & Anr7 and Keki Hormusji
Gharda & Ors. v. Mehervan Rustom Irani & Anr.8, the petitioner contended that
the IPC, save and except in some specific cases, does not contemplate vicarious
liability of a person who is not directly charged for the commission of an
offence, and a person cannot be made an accused merely by reason of his official
position. Further, it was contended that in order to launch prosecution against the
officers of a company, the complainant must make specific averments as to the role
played by each of the officials accused in the complaint. In order to buttress the
contention, the petitionerhave placed reliance on the decisions of this Court in N.K.
Wahi v. Shekhar Singh & Ors.9, Sharon Michael & Ors. v. State of Tamil Nadu10, S.K.
Alagh v. State of Uttar Pradesh & Ors.11 and Maksud Saiyed v. State of Gujarat &
Ors.12.
2. When the words “rarest of rare cases” are used after the words “sparingly and with
circumspection”.49
3. It is trite law that wherever by a legal fiction the principle of vicarious liability is
attracted and a person who is otherwise not personally involved in the commission of
an offence is made liable for the same, it has to be specifically provided in the statute
concerned.50

4. It is trite that Section 34 IPC does not constitute a substantive offence, and is merely in
the nature of a rule of evidence, and liability is fastened on a person who may have not
48
State of Haryana v. Bhajan Lal, 1992 5 Supp (1) SCC 335(India).
49
50
S.K. Alagh v. State of U.P., 2008 (5) SCC 662(India).

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 been directly involved in the commission of the offence on the basis of a pre-arranged
plan between that person and the persons who actually committed the offence. In order
to attract Section 34 IPC, the following ingredients must be established:

(i) there was common intention in the sense of a pre-arranged plan;

(ii) the person sought to be so held liable had participated in some manner in the act
constituting the offence.” 51
5.
4.2.2. THAT THE CHARGES AGAINST A3, A4 AND A5 UNDER SEC. 304 IS
NOT SUSTAINABLE.
The appellant namely Mr. Lawrence Bosch, CEO of ArtIntel and Mr. Avinash Iyer,
Project head of the Safecargo software, and Mr. Sumeet Gupta, the CEO of Greater
Noida Smart City, hereinafter referred to as A3 and A4 and A5 respectively, has filed
an application under Sec. 482 CrPC before this Hon’ble High Court to exercise its
inherent power to quash criminal proceedings against him on the grounds mentioned
below.
6. Sec. 299 IPC defines culpable homicide as the act of causing death with one of three
intentions;
i. Of causing death;
ii. Of causing such bodily injury as is likely to cause death;
iii. Of doing something which the accused knows to be likely to cause death.

Thus to attract the liability under this Section all three intention must be directed either
deliberately to putting an end to a human life or do some act which to the knowledge
of the accused is likely to eventuate in putting an end t human life.52

The term knowledge under Sec. 299 IPC postulates the existence of positive mental
attitude and this mental condition is the special men rea necessary for the offence, which
contemplates the likelihood of the death of the person.53The essence of knowledge lies

51
Chandrakant Murgyappa Umrani & Ors. v. State of Maharashtra23; Hamlet @ Sasi &
Ors. v. State of Kerala24; Surendra Chauhan v. State of M.P.25)

52
Palani Goundan v. Emperor, A.I.R. 1920 Mad. 862(India).
53
Jayaraj v. State of Tamil Nadu, A.I.R. 1976 SC 1519(India).

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 in the awareness on the part of the person concerned with the act indicating his state of
mind.54

7. The Apex Court in the recent case of Alister Anthony Pareira v. State of Maharasthra55
while explaining the said section held that pertaining to the levying of punishment under
sec. 304 it must be proved that the death of a person caused by the act of the accused
having knowledge that such act was likely to cause death. Further, in another case of
State Tr. P.S. Lodhi Colony New Delhi v. Sanjeev Nanda56 Supreme Court reiterated
the above reasoning as to the knowledge of the act likely to cause death of the person
in question. The word likely as mentioned in clause (c) of Sec 299 conveys the sense of
probable as distinguished from a mere possibility.57
8. Further, Section 304 IPC requires knowledge on the part of a person that the only
probable consequence of his act would be ‘culpable homicide’.58

54
Joti Prasad v. State of Haryana, A.I.R. 1993 SC 1167(India).
55
(2012) 2 SCC 648(India).
56
(2012) 8 SCC 450(India).
57
Ibid.
58
Tukaram Dyaneshwar Patil v. State of Maharashtra, SLP (CRL.) No. 1506/2012(India).

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