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TEAM CODE: P7

TEAM CODE: P7

CNLU FRESHERS’ MOOT COURT COMPETITION, 2018


CNLU FRESHERS’ MOOT COURT COMPETITION, 2018

IN THE HON’BLE HIGH COURT OF DILI


IN THE HON’BLE HIGH COURT OF DILI
AT DILI
AT DILI

PETITION NO. ………xxxx/2018


PETITION NO. ………xxxx/2018

PETITION INVOKED UNDER SECTION 482 OF CRIMINAL


PETITION INVOKED UNDER SEC. 482 OFCODE,
PROCEDURE CRIMINAL
1973 PROCEDURE CODE, 1973

IN THE
IN THE CASE
CASE CONCERNING
CONCERNING

QUASHING OF FIR BYOF


QUASHING HIGH
FIR COURT INCOURT
BY HIGH EXERCISE OF ITS INHERENT
IN EXERCISE OF ITS POWER
INHERENT POWER

IN THE MATTER OF
IN THE MATTER OF

1. MR. KRISHNA KUMAR……………………………..PETITIONER


1. MR. KRISHNA KUMAR……………………………..PETITIONER
v
v
2. STATE OF DILI……………………………………….RESPONDENT
2. STATE OF DILI……………………………………….RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF PETITIONER


WRITTEN SUBMISSION ON BEHALF OF PETITIONER
CNLU FRESHER’S MOOT COURT COMPETITION, 2018

TABLE OF CONTENTS

LIST OF ABBREVIATION ................................................................................................................ III


LIST OF AUTHORITY..................................................................................................................... IV
STATEMENT OF JURISDICTION ..................................................................................................... VI
STATEMENT OF FACTS ................................................................................................................ VII
STATEMENT OF ISSUES .............................................................................................................. VIII
SUMMARY OF ARGUMENTS ........................................................................................................ IX
1. THE PETITION FOR QUASHING OF FIR IS MAINTAINABLE IN COURT OF LAW. .......................................... 1
1.1 HON’BLE HIGH COURT HAS JURISDICTION AND POWER TO QUASH FIR .................................................. 1
1.2 CONTINUING WITH THE PROCEEDING WOULD BE A FUTILITY AND ABUSE OF THE PROCESS OF THE COURT 2
1.3 PROCEEDING BROUGHT IS FRIVOLOUS AND VEXATIOUS ....................................................................... 2
1.4 THERE IS NO CASE AGAINST ACCUSED ON THE BASIS OF ADMITTED FACT. ............................................. 3
2. THE SPEECH DELIVERED BY PETITIONER KRISHNA KUMAR WAS NOT SEDITIOUS. ...................................... 3
2.1 VIOLENCE IS THE STANDARD FOR THE APPLICATION OF SEC 124-A.......................................................... 4
2.1.1 Mr Krishna’s Speech did not result in use of violence. ...................................................... 4
2.1.2 Mr Krishna Speech did not have a tendency to incite violence. ........................................ 5
2.1.3 Public Disorder Was Not Linked To Speech Of Mr Krishna Kumar .................................... 5
2.2 INTENTION IS THE ESSENCE OF SEDITION ........................................................................................... 5
2.2.1 Intention Of Mr Krishna Kumar Was Not Seditious. .......................................................... 6
2.2.2 The speech was not seditious ............................................................................................ 6
2.3. NOT ESTABLISHED GROUNDS OF SEDITION BEYOND REASONABLE DOUBT ............................................. 7
2.4 ARBITRARY USE OF SEC 124-A IS AGAINST THE SPIRIT OF DEMOCRACY ................................................. 7
2.5 ARGUENDO, THE INTERPRETATION OF THE SLOGAN IN QUESTION ......................................................... 8
3. THERE IS NO GROUNDS OF DEFAMATION AGAINST PETITIONER UNDER SEC. 499 OF IPC .......................... 9
3.1 SPEECH WAS NOT AGAINST ANY PERSON WHOSE IDENTITY CAN BE ESTABLISHED. .................................. 9
3.2 CRITICISM OF PUBLIC POSITION HOLDER IS OUTSIDE THE SCOPE OF DEFAMATION................................. 10
3.3 EXCEPTION 9 OF DEFAMATION IS VALID IN PRESENT CASE ................................................................. 11
3.3.1 Imputation Was Made In Good Faith............................................................................... 11
3.3.2 Imputation Was Made For Public Good........................................................................... 12
PRAYER...................................................................................................................................... 14

II
MEMORIAL ON BEHALF OF PETITIONER
CNLU FRESHER’S MOOT COURT COMPETITION, 2018

LIST OF ABBREVIATION

A.I.R All India Reporter


& And
Anr. Another
Art. Article
BJP Bhoomi Jai Party
Cal Calcutta
cl. Clause
CONST. Constitution
Crl Criminal
Cri. L.J. Criminal Law Journal
CrPC Criminal Procedure Code
ed. Edition
FIR First Information Report
Govt. Government
H.C.R. High court Report
Hon’ble Honourable
IPC Indian Penal Code
ISP Indian Secular Party
JNU Justice National University
Mys Mysore
NCT National Capital Territory
NCRB National Crime Records Bureau
Ors. Others
Para Paragraph
Pat Patna
Sec. Section
Sep September
S/O Son Of
S.C. Supreme Court
S.C.C Supreme Court Cases
S.C.R. Supreme Court Report
U.S. United States of America
v Versus

III
MEMORIAL ON BEHALF OF PETITIONER
CNLU FRESHER’S MOOT COURT COMPETITION, 2018

LIST OF AUTHORITY

Cases
Asha Parekh v State of Bihar A.I.R. 1975 S.C.C. Online Pat 57 (India). .................................. 9
Balwant Singh and Anr v State of Punjab, A.I.R. 1985 1 SC 2301(India). ....................... 4, 5, 7
Basudeva v Rex A.I.R. 1949 ALL 513 (India). ......................................................................... 5
Bilal Ahmed Kaloo v State of Andhra Pradesh A.I.R. 1977 (7) S.C.C. 431 (India) ................. 7
Boucher v The King, (1951) S.C.R. 265.................................................................................... 5
Brandenburg v Ohio, 395 U.S. 444 (1969). ............................................................................... 4
Eastern Spinning Mills Shri Virendra Kumar Sharda v Rajiv Poddar A.I.R. 1985 S.C. 1668
(Paras 2,4) (India). .................................................................................................................. 1
Govt. Advocate v Gopal Bandu Das A.I.R. 1922 S.C.C. Pat 101 (23 Cri LJ 433) (India)........ 8
Hanumanthaiya v Government of Mysore, (1948) 52 Mys HCR 265. .............................. 3, 5, 6
Javed Habib v State (Nct of Delhi), (2007) Crl. Appeal No. 235/1999 (India). ........................ 9
Kartar Singh v State of Punjab, A.I.R. 1956 S.C.C. 541 (India). ............................................. 9
Karuppusamy v A. Natranjan A.I.R. 1974 Cri. L.J. 350 (India).............................................. 11
Kedar Nath v State of Bihar, A.I.R. 1962 1 S.C. 955(India) ................................................. 3, 4
Kishori Mohan v State of West Bengal A.I.R.1972 S.C. 1749 (India). ..................................... 6
L. V. Jadav v Shankarrao Abasaheb Pawar A.I.R.1983 S.C. 1219 (India). .............................. 2
Maneka Gandhi v Union of India A.I.R. 1978 S.C.R. (2) 621 (India). ..................................... 5
Manju Mohanka v Smt. Renuka Banerjee, 1996 Crl. L. J. 4422 (India). .................................. 9
Manoj Sharma v State & Ors. A.I.R.2008 S.C. 359 (India). ..................................................... 1
Niharendu Dutt Majumdar And Ors. v Emperor A.I.R. 1939 Cal 703 (India). ......................... 6
Ramesh S/O Chotalal Dalal v. Union of India, A.I.R. 1988 S.C.R. (2) 1011(India). ................ 7
Satish Mehra v State of NCT of Delhi A.I.R. 2013 S.C. 53(India). .......................................... 2
Sewakaram Sobhani v R.K. Karanjia A.I.R. 1981 (3) SCR 627 (India). ................................ 10
Shreya Singhal v Union of India, A.I.R. 1962 1 S.C. 1523(India). ........................................... 4
State of Haryana v Bhajan A.I.R. 1991 S.C.R. 35 (India). ........................................................ 2
State of Karnataka v L. Muniswamy A.I.R. 1977 S.C. 1489 (India). ........................................ 1
Street v. New York, 394 U.S. 576 (1969). ................................................................................. 7
Subhash Chander v State A.I.R.1980 S.C. 423 (India). ............................................................. 2
Superintendent, Central Prison, Fatehgarh and Anr. v Ram Manohar Lohiya A.I.R. 1960 SC
633 (India). ............................................................................................................................. 6
Surendra Kumar v Kanhiyal Lal & Ors. A.I.R. 2009 SC 1961(India). ..................................... 3
Thakur Ram v State of Bihar A.I.R. 1966 S.C. 911 (India)....................................................... 2
Yadali v Gaya Singh A.I.R. 1929 57 Cal 843 (India). ............................................................. 10

IV
MEMORIAL ON BEHALF OF PETITIONER
CNLU FRESHER’S MOOT COURT COMPETITION, 2018

Articles
Samar Halankar, Gandhi would approve, Hindustan Times, Sep 12, 2012, at 9. ..................... 7
Reports
NCRB, Crime in India Compendium (2014). ........................................................................ 2, 7

Statutes References

Explanation 2, Sec. 124A, Indian Penal Code, 1860. ................................................................ 5


Sec. 124A, Indian Penal Code, 1860 ......................................................................................... 3
Sec. 499, Indian Penal Code, 1860. ........................................................................................... 8
Section 482 of Criminal Procedure Code, 1973. ...................................................................... V

Constitutional Provisions

INDIA CONST. art 19, cl. 1(a).............................................................................................. 6, 7


INDIA CONST. art 19, cl. 2 ...................................................................................................... 6

Books Referred

Shamsul Huda, The Law of Crimes, 2011


Ratanlal & Dhirajlal, IPC, 35th ed., 2017
Durga Das Basu, CrPC, 6th ed., vol. I & II, 2017
Durga Das Basu, Commentary on Constitution of India, Vol. I – III
Jagdish Swaroop, Constitution of India, 2nd ed., Vol. I & II, 2008
S.C. Sarkar, The Indian Penal Code, 1860, 2014
P.S.A. Pillai, Criminal Law, 11th ed., 2012
Dr. Hari Singh Gour, Indian Penal Code, 15th ed. Vol. I & II

V
MEMORIAL ON BEHALF OF PETITIONER
CNLU FRESHER’S MOOT COURT COMPETITION, 2018

STATEMENT OF JURISDICTION

It is humbly submitted that the petitioners have approached the Hon’ble High Court of Dili
invoking its Jurisdiction under Section 482 of Criminal Procedure Code, 1973.

Section 482 OF CrPC: Saving of inherent powers of High Court:-. Nothing in this Code shall
be deemed to limit or affect the inherent powers of the High Court to make such orders as may
be necessary to give effect to any order under this Code, or to prevent abuse of the process of
any Court or otherwise to secure the ends of justice.

The present memorial sets forth the facts, contentions and arguments in the present case.

VI
MEMORIAL ON BEHALF OF PETITIONER
CNLU FRESHER’S MOOT COURT COMPETITION, 2018

STATEMENT OF FACTS

Chanakya Background
Chanakya is a country in the southern part of Asia. The Chanakya’s constitution is enshrined
with concept of secularism and socialism and aims to promote Justice, Equality, Unity and
Integrity amongst the citizens. The Constitution of Chanakya grants Fundamental Rights to its
citizen. Chanakya is a Democratic Nation.
Social and Religious Composition
Sanatan and Mahmud are two major religion in the state of Chanakya and they have distinct
culture and tradition which are at times in contrast with one another. One such practice include
cow slaughtering by Mahmud’s which is strictly prohibited by Sanatan. Sanatan is in majority
and Mahmud’s are minority in Chanakya.
Recent Events
The Chanakya is currently ruled by Bhoomi Jai Party (BJP). State of Uttam Pradesh passed
Consumption of Beef (Prohibition) Act, 2018. The bill despite receiving many criticism and
ignoring the hue and cry in the country it has created is also passed in Lok Sabha and is pending
in Rajya Sabha to be passed.
Krishna Kumar is the President of Justice National University (JNU), Dili and have close link
with prime faces of opposition party i.e. Indian Secular Party (ISP). He is an aspiring political
leader of Chanakya and was deeply agitated by the bill regarding prohibition of eating of beef
and therefore he called for a huge public gathering outside the JNU campus.
Speech and Post events
The speech of Krishna Kumar targeted the measures of ruling government and its failure in
fulfilling the needs of the country. He remarked their intention of passing such a bill as against
the soul of Constitution of Chanakya. Krishna Kumar’s motive was to pressurize the
government to put a stay on such laws.
After the speech and post speech silence among the crowd an unknown voice penetrated the
silence with slogans like “CHANAKYA TERE TUKDE HONGE, MILKAR RAHEGI
AZAADI.” Which resulted in disturbing the public order of Dili and was subsequently
controlled by the police. FIR was lodged against Krishna Kumar for Sedition and Defamation
and he was arrested. Krishna Kumar has went to High Court under Sec. 482 of Cr.P.C. for
quashing of FIR.

VII
MEMORIAL ON BEHALF OF PETITIONER
CNLU FRESHER’S MOOT COURT COMPETITION, 2018

STATEMENT OF ISSUES

I.

WHETHER THE PETITION FOR QUASHING FIR IS MAINTAINABLE IN


THE COURT OF LAW?

II.

WHETHER THE SPEECH DELIVERED BY KRISHNA KUMAR WAS


SEDITIOUS?

III.

WHETHER THERE WERE ANY GROUNDS OF DEFAMATION UNDER


SECTION 499 OF INDIAN PENAL CODE, 1860?

VIII
MEMORIAL ON BEHALF OF PETITIONER
CNLU FRESHER’S MOOT COURT COMPETITION, 2018

SUMMARY OF ARGUMENTS

I. THE PETITION FOR QUASHING OF FIR IS MAINTAINABLE IN THE COURT OF LAW

The petition for quashing of FIR is maintainable in the court of law as under section 482 of
CrPC of India it is the inherent power of the High Court to interfere in the proceedings of
criminal court to prevent any abuse of process of the court and to secure ends of justice. The
petitioner had approached the high court in order to seek relief from such arbitrary abuse of
process of law by the government itself to supress the voice of citizens which is guaranteed by
the Constitution of Chanakya. Despite having no proof Prima Facia so as to establish any causal
link between the disorder in Dili and the speech and ignoring the exception and essentials of
criminal defamation a proceeding is being carried out on the petitioner for sedition and
defamation thus non-interfere of Hon’ble High Court would led to heavy miscarriage of justice.

II. THE SPEECH DELIVERED BY KRISHNA KUMAR WAS NOT SEDITIOUS

The speech delivered by Mr Krishna Kumar was not seditious as there was no incident of
violence or incitement to violence by the petitioner. Further no mala fide or ill intention on the
part of petitioner was there and the speech too can’t be considered as seditious. To ascertain
and prove the offence of sedition it must be established beyond reasonable doubt that the act
of the person amounted to sedition which is lacking in the present case. Such arbitrary use of
section 124-A is against the very spirit of democracy and the whole proceeding brought against
the petitioner by the government is to supress the dissenting voice of common people.

III. THERE WERE NO GROUNDS OF DEFAMATION UNDER SECTION 499 OF INDIAN PENAL
CODE, 1860

Krishna Kumar by his speech in good faith intended to alter or to put a stay on such laws which
the government is trying to pass which may undermine the ideals of constitution and had
already created much hue and cry within the country. His speech was not against any person
or group whose identity can be established. Further, Criticism of public position holder is
outside the scope of defamation and even if any such imputed statement was made, it was made
in good faith and for the public good thereby falling under the ambit of exception 9 of the
section 499 of Defamation

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MEMORIAL ON BEHALF OF PETITIONER
CNLU FRESHER’S MOOT COURT COMPETITION, 2018

ARGUMENTS ADVANCED

1. THE PETITION FOR QUASHING OF FIR IS MAINTAINABLE IN COURT OF LAW.

The High Court has the power to quash a FIR which is frivolous in nature and when there is no
need to pursue the case necessarily against the alleged person. The reasoning behind it is simple
that if Prima Facia no offence is disclosed, there can be no reason as to why the accused should
suffer the agony of a legal proceeding

The counsel therefore submits that petition for quashing of FIR is maintainable in the High Court
on the ground that High court has jurisdiction and power to quash FIR [1.1]. When continuing with
the proceeding would be a futility and abuse of the process of the court1 [1.2]. And, to put an end
to frivolous and vexatious proceeding. [1.3]. lastly when, on the admitted facts or on the face of the
complaint or the FIR there is no case against accused [1.4].

1.1 HON’BLE HIGH COURT HAS JURISDICTION AND POWER TO QUASH FIR

Sec. 482 of CrPC grants High Court inherent power to give or make any such orders which it
may deem fit and necessary to give effect to any order, or to prevent abuse of the process of
any Court or otherwise to secure the ends of justice. Such inherent power includes quashing of
FIR where non-interference by High Court with Further investigation would result in a
miscarriage of justice.2

The counsel submits that the petitioner has the Locus Standi on the very ground that further
proceedings in this case would lead to miscarriage of Justice which is dealt in details in further
sub-issues and thus petition for quashing of FIR is maintainable in this Court.

1
State of Karnataka v L. Muniswamy A.I.R. 1977 S.C. 1489 (India).
2
Eastern Spinning Mills Shri Virendra Kumar Sharda v Rajiv Poddar A.I.R. 1985 S.C. 1668 (Paras 2,4) (India).

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MEMORIAL ON BEHALF OF PETITIONER
CNLU FRESHER’S MOOT COURT COMPETITION, 2018

1.2 CONTINUING WITH THE PROCEEDING WOULD BE A FUTILITY AND ABUSE OF THE
PROCESS OF THE COURT

It is well settled in the Manoj Sharma case3 that if the High Court is convinced that continuing
with the proceeding would be a futility, quashing of FIR is not to be refused.

It is humbly submitted in the Hon’ble Court that there is no substantive evidence as to prove
the ground of Sedition and defamation in the present case. Lack of Basic ingredients and
essentials in establishing both the criminal offence is absent, which will be dealt by the counsel
in further issues. Despite that Mr Krishna Kumar was arrested and criminal proceeding is
brought against him.

The finding the counsel want the court to make is the broad principle for exercise of this
extraordinary power is that in case the allegations made against the accused prima facia do not
disclose an offence, there can be no reason as to why the accused should suffer the agony of o
legal proceeding. A prosecution which is bound to overcome lame or a sham out to be
interdicted in the interest of justice as continuance thereof will amount to abuse of process of
law.4 Therefore in the present case it is humbly submitted that the petition is maintainable.

1.3 PROCEEDING BROUGHT IS FRIVOLOUS AND VEXATIOUS

To prevent abuse of process of the court5, the High Court may quash an order taking cognizance
where the proceeding is frivolous and vexatious6 or mala fide. It is duly submitted that the act
of accused was not in question with law of nation and the proceeding brought against him by
the government has some substantial ill faith against the people who dissent from the general
ideology of the current political party in power. It is clear that petitioner has link with the
opposing party of the nation and he himself is an aspiring political leader who in good faith
and to protect the spirit of constitution has gone against the proposal of ruling government and
hence is made to suffer such mental agony.

3
Manoj Sharma v State & Ors. A.I.R.2008 S.C. 359 (India).
4
Satish Mehra v State of NCT of Delhi A.I.R. 2013 S.C. 53(India).
5
State of Haryana v Bhajan A.I.R. 1991 S.C.R. 35 (India).
6
L. V. Jadav v Shankarrao Abasaheb Pawar A.I.R.1983 S.C. 1219 (India).

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MEMORIAL ON BEHALF OF PETITIONER
CNLU FRESHER’S MOOT COURT COMPETITION, 2018

It is submitted that as per the NCRB7 figures total of 58 persons were arrested in connection
with these cases in 2014-15, but the government has managed only one conviction, which itself
is enough for the court to take notice of the intention of government.

A division bench of the Bombay High Court has held that since a criminal proceeding is meant
not to wreak vengeance8 but to maintain peace and security in locality9 it is competent for the
Court to apply under sec. 482 to quash a complaint proceeding.

Thus the counsel submits that petition is maintainable.

1.4 THERE IS NO CASE AGAINST ACCUSED ON THE BASIS OF ADMITTED FACT.

In the Surendra Kumar v Kanhiyal lal & ors.10 It was held that allegations in the FIR even if
accepted to be true if do not relate to the accused then quashing of FIR is proper. In present
case even if the slogans are accepted to be seditious in nature do not relate in any way to him
as there is no causal link between the happening of such disorder and the speech of Krishna
Kumar. The Facts being silent about the person who actually uttered those words put Krishna
Kumar’s conviction beyond reasonable doubt in question and thus such proceeding should be
quashed.

Defamation charges against the accused is again made disregarding the fact that public office
holder are prone to such criticism and thus it is outside the scope of Criminal Defamation.
Imputations by Krishna Kumar was not made against any person whose identity can be
established and even if there are any instance of such imputation against an established
identifiable person it was primarily made in good faith and most importantly in the greater
public good and hence is well preserved under sec. 499 of IPC under exception 9.

Thus the Counsel submits that petition for quashing Fir is maintainable.

2. THE SPEECH DELIVERED BY PETITIONER KRISHNA KUMAR WAS NOT SEDITIOUS.

7
NCRB, Crime in India Compendium (2014).
8
Thakur Ram v State of Bihar A.I.R. 1966 S.C. 911 (India).
9
Subhash Chander v State A.I.R.1980 S.C. 423 (India).
10
Surendra Kumar v Kanhiyal Lal & Ors. A.I.R. 2009 SC 1961(India).

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MEMORIAL ON BEHALF OF PETITIONER
CNLU FRESHER’S MOOT COURT COMPETITION, 2018

The counsel on behalf of petitioner most humbly submits that the speech delivered by petitioner
Mr Krishna Kumar was not seditious. It is humbly submitted, speech so delivered was clear case
of comments expressing disapprobation of the measures of government with a view to obtain their
altercation by lawful means.11

To prove the offence of sedition violence should be the standard of conviction12 [2.1]. Secondly,
intention is the essence for the crime of sedition13 [2.2]. Thirdly, the case against the accused must
be established beyond a reasonable doubt14 [2.3]. Lastly, arbitrary use of Sec. 124A is against the
spirit of democracy [2.3].

2.1 VIOLENCE IS THE STANDARD FOR THE APPLICATION OF SEC 124-A

The standard in common law jurisdiction involves an element of violence. The Indian Supreme
Court in Kedarnath case15 narrowed the scope and applicability of section 124-A where it is
linked to test of tangible evidence of actual harm. The Sedition (amendment) bill as proposed in
parliament seeks to replace section 124-A of IPC with a new provision which will implicate an
individual for sedition only when it directly results in the use of violence or incitement to
violence. Indian Supreme Court has drew a clear distinction between “advocacy” and
“incitement”, and only the latter could be punished.16 Even the U.S. Supreme Court lays down
‘imminent lawlessness’ as the threshold for sedition.17

In the present case it is submitted that Mr Krishna Kumar speech did not result in use of violence
[2.1.1], and the speech did not have a tendency to incite violence [2.1.2]. Moreover the resultant
public disorder post the completion of speech is not linked to the speech [2.1.3].

2.1.1 MR KRISHNA’S SPEECH DID NOT RESULT IN USE OF VIOLENCE.


Supreme Court stipulates that only words that imply subversion of the government by
violent means are punishable18. The speech in JNU campus in Dili had no element of

11
Sec. 124A, Indian Penal Code, 1860.
12
Kedar Nath v State of Bihar, A.I.R. 1962 1 S.C. 955(India).
13
Hanumanthaiya v Government of Mysore, (1948) 52 Mys HCR 265.
14
Balwant Singh and Anr v State of Punjab, A.I.R. 1985 1 SC 2301(India).
15
Kedar Nath v State of Bihar, A.I.R. 1962 1 SC 955(India).
16
Shreya Singhal v Union of India, A.I.R. 1962 1 S.C. 1523(India).
17
Brandenburg v Ohio, 395 U.S. 444 (1969).
18
Kedar Nath v State of Bihar, A.I.R. 1962 1 S.C. 955(India).

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MEMORIAL ON BEHALF OF PETITIONER
CNLU FRESHER’S MOOT COURT COMPETITION, 2018

violence or tangible evidence of actual physical harm19 as the situation was subsequently
controlled by police and no such violence is reported in the FIR.

2.1.2 MR KRISHNA SPEECH DID NOT HAVE A TENDENCY TO INCITE VIOLENCE.


Mr Krishna being a student of JNU and the president of the students’ union of JNU20. It is
his duty to create pressure on government to put a stay or to repeal any law made by
government which are arbitrary, unjust or against the spirit of constitution in order to keep
a check on government. His speech contained figurative term which were used to express
peaceful disapprobation. At no point of time did he call upon people to resort to any
unconstitutional means, on the contrary, he talked about upholding the ideals of the
constitution such as Secularism. Also, the standard for speeches with ‘seditious tendency’
is rather high.21 For instance, shouting slogans demanding a separate country right after the
assassination of the Prime Minister of India was held to be not seditious.22

2.1.3 PUBLIC DISORDER WAS NOT LINKED TO SPEECH OF MR KRISHNA KUMAR


The public disorder that was caused owing to the slogans of hatred and disaffection towards
the government cannot be imputed to Mr Krishna Kumar. The concept of vicarious liability
cannot be called upon in criminal cases,23 hence the shouting of slogans by unknown person
from the crowd that was being addressed by Mr Krishna Kumar cannot be the ground of
making him liable under sec. 124-A24. Secondly, there was no proximate relationship
between the speech and the subsequent public disorder.25 Thus In the light of above facts
and precedents, Mr Krishna Kumar cannot be held liable under Sec. 124-A of the Indian
Penal Code, 1860.

2.2 INTENTION IS THE ESSENCE OF SEDITION

The essence of the crime of sedition consist in the intention with which the language of speech
is used and that intention has to be judged primarily from the speech itself.26 The finding the

19
Para. 8, Page 2, MOOT PROPOSITION, CNLU FRESHER’S MOOT COURT COMPETITION, 2018.
20
Para 4, Page 1, MOOT PROPOSITION, CNLU FRESHER’S MOOT COURT COMPETITION, 2018.
21
Boucher v The King, (1951) S.C.R. 265.
22
Balwant Singh and Anr v State of Punjab, A.I.R. 1985) 1 SC 2301(India).
23
N.J. Lawankar v Anil Devidas Garad, (2007) 115 FLR 25; Surinder Singh v State of Punjab, (2003) 10 S.C.C.
66.
24
Sec. 124A, Indian Penal Code, 1860.
25
Basudeva v Rex A.I.R. 1949 ALL 513 (India).
26
Hanumanthaiya v Government of Mysore, (1948) 52 Mys HCR 265.

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MEMORIAL ON BEHALF OF PETITIONER
CNLU FRESHER’S MOOT COURT COMPETITION, 2018

counsel want the court to make is the intention of Mr Krishna Kumar was not to create any
disloyalty or feeling of enmity towards the government established by law27[2.2.1] and the
speech in its totality was not seditious[2.2.2].

2.2.1 INTENTION OF MR KRISHNA KUMAR WAS NOT SEDITIOUS.


The right to protest through civil disobedience has come to be recognised as a right of citizen
in a democratic polity.28 The speech of Krishna Kumar was not in any way intended to be
seditious. Mr Krishna Kumar not only by his language but also by his remarks,29 exclusively
stated and made his intention clear about the agitation he have for the present government
and its working30 These verbal display is mere criticism expressing disapprobation of the
measure of government with a view to obtain their altercation by lawful means without
exciting or attempting to excite hatred, contempt or dissatisfaction31 and mere criticism of
the government does not necessarily disturb public order32 and thus the counsel humbly
submits that intention of Krishna Kumar was not seditious.

2.2.2 THE SPEECH WAS NOT SEDITIOUS


ts that the speech of Mr Krishna Kumar was not seditious. In forming an opinion as to the
character of speech charged as sedition, the speech must be looked at and taken as a whole,
freely and fairly, without giving undue weight to isolated passages and without passing upon
an objectionable sentence here and a strong word there, and, each passage should be
considered in connection with the others and with the general drift of the whole.33 The
speech of Krishna Kumar in its totality is mere expressing disapprobation of the measure of
government which does not constitute sedition.34 The speech was not an attempt to bring
hatred, contempt or for exciting disaffection towards the government established by law.35
The intention of Krishna Kumar was to pressurise the government and bring the attention
of the government towards the proposed bill regarding beef ban so as to bring altercation or
disposal of such bill which will undermine the very spirit of constitution36 if enacted The

27
Explanation 1, Sec. 124A, Indian Penal Code, 1860.
28
Maneka Gandhi v Union of India A.I.R. 1978 S.C.R. (2) 621 (India).
29
Para 6, Page 2, Moot proposition, CNLU fresher’s moot court competition, 2018.
30
Line 1, Para 6, Page 2, Moot proposition, CNLU fresher’s moot court competition, 2018.
31
Explanation 2, Sec. 124A, Indian Penal Code, 1860.
32
Kishori Mohan v State of West Bengal A.I.R.1972 S.C. 1749 (India).
33
Hanumanthaiya v Government of Mysore, (1948) 52 Mys HCR 265. (India).
34
Explanation 2, Sec. 124A, Indian Penal Code, 1860.
35
Sec. 124A, Indian Penal Code, 1860.
36
Para 1, Page 1, Moot proposition, CNLU fresher’s moot court competition, 2018.

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speech was in consonance with the right of an individual to express his views37 and also
within the circumscribed reasonable restriction38 as it was never intended to disturb the
public order nor there is any causal link between the post speech events and the speech. 39
The post speech silence40 among the crowd proves beyond a reasonable doubt for a
reasonable man to establish that speech was not seditious41 on the account of incitement to
offence. Thus the counsel submi

2.3. NOT ESTABLISHED GROUNDS OF SEDITION BEYOND REASONABLE DOUBT

The facts are silent itself about the person who shouted slogans42 which is sought to be of
seditious nature or the cause for disturbing the public order of Dili. In sedition it must be
established beyond reasonable doubt that accused is liable for the offence43 and no such grounds
can be established in the present case.

Even if some nuances of expression have the tendency to stir up feelings among the listener, it
is not sufficient to establish an offence44 if a strong and beneficial impression is conveyed by
the same message.45 The fact that the ultimate objective was, as mentioned in the speech, ‘to
pressurize the government’ clearly indicates bona fide intentions on part of the petitioner. There
is nothing in the facts to suggest that Mr Krishna Kumar intended to incite ‘violence’ or
‘lawlessness’. Thus the Counsel submits that the charges of sedition against the petitioner is
unsustainable.

2.4 ARBITRARY USE OF SEC 124-A IS AGAINST THE SPIRIT OF DEMOCRACY

Gandhi Ji described Sec.124A as the ‘prince among the political sections of the Indian Penal
Code designed to suppress the liberty of the citizen46’.

37
INDIA CONST. art 19, cl. 1(a).
38
INDIA CONST. art 19, cl. 2.
39
Superintendent, Central Prison, Fatehgarh and Anr. v Ram Manohar Lohiya A.I.R. 1960 SC 633 (India).
40
Para 7, Page 2, Moot proposition, CNLU fresher’s moot court competition, 2018.
41
Niharendu Dutt Majumdar And Ors. v Emperor A.I.R. 1939 Cal 703 (India).
42
Para 7, Page 2, Page 2, Moot proposition, CNLU fresher’s moot court competition, 2018.
43
Balwant Singh and Anr v State of Punjab, A.I.R. 1985 1 S.C. 2301(India).
44
Street v. New York, 394 U.S. 576 (1969).
45
Ramesh S/O Chotalal Dalal v. Union of India, A.I.R. 1988 S.C.R. (2) 1011(India).
46
Samar Halankar, Gandhi would approve, Hindustan Times, Sep 12, 2012, at 9.

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It is submitted that according to the National Crime Records Bureau (NCRB) Report47, 2014 as
many as 47 sedition cases were reported in 2014 alone, across nine Indian states. Many of these
cases did not involve violence or incitement to violence, which is a pre-requisite for a sedition
charge. It is submitted that as per the NCRB figures total of 58 persons were arrested in
connection with these cases, but the government has managed only one conviction.

In Bilal Ahmed case48 Court held that manner in which convictions have been recorded for
offences under 124-A has exhibit a very casual approach of trial court. Charges framed for these
offences did not contain the essential ingredients of the offences under this section. It is expected
that graver the offence, greater should be the care taken so that liberty of a citizen is not lightly
interfered with.

The finding counsel want the court to make is despite any causal link between the public disorder
and the speech of Mr Krishna Kumar, lack of violence or incitement to violence which is an
important ingredient to constitute sedition, lack of intention to create or excite disloyalty and
any feeling of enmity and utter disregard of the fact of lack of evidence regarding whom shouted
the slogans in question, the petitioner is made liable for the same which is another example of
such arbitrary use of power by the government to supress the voice of opposition and hence such
use may prove to be against the spirit of democracy as well as the constitution of Chanakya.

2.5 ARGUENDO, THE INTERPRETATION OF THE SLOGAN IN QUESTION

Assuming but not conceding that slogan in question was shouted by Mr Krishna Kumar it is
duly submitted that interpretation of such slogan was wrongly perceived. What the petitioner
meant by expressing such a slogan was that if such type of aristocratic act will be passed by
the government with utter disregard of people’s opinion as well as ideals of the constitution
over such an act in a vibrant Democracy like Chanakya, it would lead to disintegration of the
country which is highly feared by Mr Krishna Kumar49. The petitioner sought to secure
freedom from all such undemocratic and unconstitutional means opted by government in order
to preserve the constitution, democracy and the people of Chanakya.

47
NCRB, Crime in India Compendium (2014).
48
Bilal Ahmed Kaloo v State of Andhra Pradesh A.I.R. 1977 (7) S.C.C. 431 (India).
49
Para 6, Page 2, Moot proposition, CNLU fresher’s moot court competition, 2018.

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The finding the counsel want the court to make is it was “loyalty” of petitioner towards his
motherland rather than “disloyalty” as is requisite to prove Sedition.

3. THERE IS NO GROUNDS OF DEFAMATION AGAINST PETITIONER UNDER SEC. 499


OF IPC

The speech in its entirety was meant and intended against the measures of government that are
piercing the soul of constitution50 which comes under the ambit of petitioner Fundamental Rights51
and was never intended to defame of any person. Intention being an important element of Criminal
Offences no charge for Criminal Defamation can be sought under Sec. 499 of Indian Penal Code,
1860.

The Counsel submits that words and speech of Krishna Kumar was not against any person whose
identity can be established. [3.1]. Secondly, positive criticism of public position holder is outside
the scope of criminal defamation [3.2]. Thirdly, it is not defamation to make an imputation against
a person if it is made in good faith for the protection of interest of public good. [3.3]. Lastly, action
brought by government against petitioner is against the spirit of democracy and fundamental rights
as enshrined by our constitution. [3.4].

3.1 SPEECH WAS NOT AGAINST ANY PERSON WHOSE IDENTITY CAN BE
ESTABLISHED.

Any phrase in question of defamation must be concerned with any person whose identity can
be established. He may be a single individual or a group where, therefore, the identity could
not be established, it was held that accused could not be convicted.52 The statement made by
petitioner whereby he spoke, “These bestial devotees of religion in power” is not directed
towards any person or a group and furthermore no specific identity of person can be established
in relation to such words. Mr Krishna Kumar’s speech is against anyone who question and
outrage the modesty of constitution and not against any person in certainty.

50
Para 6, Page 2, Moot proposition, CNLU fresher’s moot court competition, 2018.
51
INDIA CONST. art 19, cl. 1(a).
52
Govt. Advocate v Gopal Bandu Das A.I.R. 1922 S.C.C. Pat 101 (23 Cri LJ 433) (India).

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Further in Asha Parekh v State of Bihar53 the court held that it is necessary in such a case to
show that the class of person is so small that its identity could be established. As in this case it
was found that advocate as a class could not be defamed similarly the expression “people in
power” is too vague54 and could not form the basis of being identified as a class which is being
defamed and thus Krishna Kumar’s should not be made liable on this ground.

The finding the counsel want the hon’ble court to make is charges of criminal defamation
against the Petitioner is weak as it lacks the very essence ingredient of “concerning any
person”55 which is necessary to be proven in case of criminal defamation.

3.2 CRITICISM OF PUBLIC POSITION HOLDER IS OUTSIDE THE SCOPE OF


DEFAMATION

Chanakya is a democratic country56 where people holding public position are elected by its
people and act as their representative. These people have the right as well as duty to see whether
their representative work for their betterment or not and in order to keep a check on
representative government positive criticism is accepted and should be invited.57
The criticism of the government is the hallmark of democracy. As a matter of fact the essence
of democracy is criticism of the Government.58 The democratic system which necessarily
involves an advocacy of the replacement of one government by another, gives the right to the
people to criticize the government.59

In Kartar Singh case60 Supreme Court of India pointed that “whoever fills a public position
renders himself open to criticism. He must accept an attack as necessary, though unpleasant,
appendage to his office…. Public men in such positions may as well think it worth their while
to ignore such vulgar criticisms and abuses hurled against them rather than give an importance
to the same by prosecuting the person responsible for the same.” Therefore even if the petitioner

53
Asha Parekh v State of Bihar A.I.R. 1975 S.C.C. Online Pat 57 (India).
54
Manju Mohanka v Smt. Renuka Banerjee, 1996 Crl. L. J. 4422 (India).
55
Sec. 499, Indian Penal Code, 1860.
56
Para 1, Page 1, Moot proposition, CNLU fresher’s moot court competition, 2018.
57
Preye S Aganaba, Constructive criticism a catalyst of vibrant Democracy, February 7, 2013, at 13, 14.
58
Javed Habib v State (Nct of Delhi), (2007) Crl. Appeal No. 235/1999 (India).
59
Javed Habib v State (Nct of Delhi), (2007) Crl. Appeal No. 235/1999 (India).
60
Kartar Singh v State of Punjab, A.I.R. 1956 S.C.C. 541 (India).

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made any attack on the holder of any public position it would be beyond the scope of criminal
defamation.

Public men can claim no immunity from criticism even when the position they hold are official.
It is a price they pay in free countries, for the honour and privilege of occupying posts of
exceptional responsibility, power and advantage.61

The counsel submits that Petitioner was merely criticising government and its measures and
even statements against people who are public position holder are not under the ambit of
criminal defamation and any such allegations put forth is mere sign of aristocracy of
government against which the petitioner ask for interference of court of law to put aside such
charges.

3.3 EXCEPTION 9 OF DEFAMATION IS VALID IN PRESENT CASE

Ninth Exception – Imputation made in good faith by person for protection of his or other’s
interests:-
It is not defamation to make an imputation on the character of another provided that the
imputation be made in good faith for the protection of the interest of the person making it, or
of any other person, or for the public good62.

3.3.1 IMPUTATION WAS MADE IN GOOD FAITH.


It is humbly submitted in the Hon’ble court that that any imputation made by Mr Krishna
Kumar was made in good faith. His sole intention for calling upon such a gathering and his
speech impliedly as well as expressly63 was clear. He opted to make such speech only
because he perceived that the constitution of Chanakya is being undermined by the current
government of Chanakya. Further a question of good faith is a question of fact.64And facts
are in itself silent about any mala fide intention of the petitioner. Moreover his speech
expressly mention his good faith “to pressurize the government to put a stay on such laws.”

61
2 Ram Jethmalani & D.S. Chopra, The Indian Penal Code 2547 (1d 2014).
62
Sec. 499, Indian Penal Code, 1860.
63
Para 6, Page 2, Moot proposition, CNLU fresher’s moot court competition, 2018.
64
Sewakaram Sobhani v R.K. Karanjia A.I.R. 1981 (3) SCR 627 (India).

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Expression of good faith varies with circumstances of each case.65 In the present case since
the fact is silent to determine the faith of one person the speech of petitioner is in itself the
test to determine such good faith.

Mr Krishna Kumar was acting in good faith as a responsible citizen of Chanakya as well as
the President of JNU, one of the old age and prestigious university of Chanakya.66 Thus such
active criticism is highly accepted from him and the sustenance of Vibrant Democracy. He
is an aspiring political leader67 and such role is foreseeable. His empathy towards the ideals
of constitution is in itself a sign of Good faith he had while delivering the speech. Mere
having different ideology from that of the political party currently in the government or
having close connection with the opposition68 is no ground of bad intention.

The counsel therefore submits that his speech and conduct was in good faith.

3.3.2 IMPUTATION WAS MADE FOR PUBLIC GOOD.


The counsel submits that any imputation made by the petitioner was made for public good
and thus no charge of defamation can be maintained against him.

In Karupppusamy v A. Natarajan69 where a villager objected to the appointment of the


complainant as a village munsif in the bona fide belief that he was undesirable for the public
post because of him being rowdy. It was held that he acted in a good faith and was therefore
protected under exception of criminal defamation.70 Similarly, Mr Krishna Kumar too made
such statements in bona fide belief that such measures “will push country towards self-
annihilation”71 He was concerned for public good about the desirability of the current Prime
Minister for such post as no measures for betterment of Chanakya’s poverty and hunger
stricken population was being carried out by him according to the petitioner. Current
government in spite of taking such measures for betterment of our country is passing such

65
Yadali v Gaya Singh A.I.R. 1929 57 Cal 843 (India).
66
Para 4, Page 1, Moot proposition, CNLU fresher’s moot court competition, 2018.
67
Para 5, Page 1, Moot proposition, CNLU fresher’s moot court competition, 2018.
68
Para 5, Page 1, Moot proposition, CNLU fresher’s moot court competition, 2018.
69
Karuppusamy v A. Natranjan A.I.R. 1974 Cri. L.J. 350 (India).
70
Sec. 499, Indian Penal Code, 1860.
71
Para 6, Page 2, Moot proposition, CNLU fresher’s moot court competition, 2018.

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a bill which has led to a situation of protest and hue & cry and may undermine the very spirit
of constitution.

Therefore, the counsel submits that all such imputation was made for public good so as to
safeguard the constitution and its ideals together with pointing out any incompetency of the
current Prime Minister which is allowed in democracy and further guaranteed by 9 th
exception of Sec. 499 of Indian Penal Code and thus charges of defamation are not
applicable.

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PRAYER

Wherefore in the light of the facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed and implored before this Honourable Court to adjudge and
declare –

 That the Petition for quashing FIR is maintainable under Section 482 of CrPC.
 That the speech delivered by Krishna Kumar was not seditious.
 That there were no grounds of Defamation under Section 499 of Indian Penal Code,
1860.

AND/OR

Pass any other order, direction, or relief that it may deem fit in the best interests of Justice,
Fairness, Equity and Good Conscience.

All of which is most humbly and respectfully submitted.

Counsel for the Petitioner

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