Respondent Final MemoMemo

TEAM CODE:____TC-28________

5TH EDITION OF NATIONAL MOOT COURT COMPETITION “CHECK MATE”

20THMARCH TO 22ND MARCH, 2015

ARMY INSTITUTE OF LAW, MOHALI

BEFORE

THE HON’BLE SUPREME COURT OF INDIA AT DELHI

DISPUTE RELATING TO

QUASHING OF FIR

CONSTITUTIONALITY OF ORDINANCE

CRIMINAL APPEAL NO. 32/2015

CRIMINAL APPEAL NO. 33/2015

W.P© NO.16/2015

UNDER ARTICLE 136 AND 32 OF THE CONSTITUTION OF INDIA

In the Matter of

MANU SHARMA AND VAIBHAV SHARMA …..…………………………………………

(APPLICANT)

V.

UNION OF INDIA, U.T OF CHANDIGARH AND STATE OF PUNJAB……………….……..

(RESPONDENT)

MEMORIALfor RESPONDENTS

UNION OF INDIA, U.T OF CHANDIGARH AND STATE OF PUNJAB

STATEMENT OF JURISDICTION

MANU SHARMA V. UNION TERRITORY OF CHANDIGARH

The applicant has invoked the jurisdiction of the Hon’ble Supreme Court of India

under Article 136 of the Constitution of India in the present criminal dispute. The Respondent

challenges the jurisdiction of the Hon’ble Court. Thereby, the RESPONDENT submits this

memorial which sets forth the facts & the laws on which the responses are based.

VAIBHAV SHARMA V. STATE OF PUNJAB


under Article 136 of the Constitution of India in the present criminal dispute. The Respondent

challenges the jurisdiction of the Hon’ble Court. Thereby, the RESPONDENT submits this

memorial which sets forth the facts & the laws on which the responses are based.

MANU SHARMA V. UNION OF INDIA


under Article 32 of the Constitution of India in the dispute regarding the constitutionality of

the ordinance. The Respondent challenges the jurisdiction of the Hon’ble Court. Thereby, the

RESPONDENT submits this memorial which sets forth the facts & the laws on which the

responses are based.

QUESTIONS OF LAW


ISSUE I: Whether the Special Leave Petition is maintainable in the Hon’ble Court.

ISSUE II: Whether the First Information Report should be quashed.


ISSUE I: Whether the Special Leave Petition is maintainable in the Hon’ble Court.

ISSUE II: Whether the First Information Report should be quashed.


ISSUE I: Whether the Writ Petition is maintainable in the Hon’ble Court.

ISSUE II: Whether the ordinance is constitutional.

SUMMARY OF ARGUMENTS


ISSUE I: WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE IN THE HON’BLE

COURT.

The Special Leave Petition is not maintainable in the Hon’ble Court as the conditions under

which the Supreme Court of India would hear a petition under Article 136 of the Constitution

of India are not satisfied.

ISSUE II: WHETHER THE FIRST INFORMATION REPORT SHOULD BE QUASHED.

The First Information Report should not be quashed as the principles laid down by the

Hon’ble court as well as the conditions mentioned in the provision with regard to quashing an

FIR are not satisfied.


ISSUE I: WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE IN THE HON’BLE

COURT.

The Special Leave Petition is not maintainable in the Hon’ble Court as the conditions under

which the Supreme Court of India would hear a petition under Article 136 of the Constitution

of India are not satisfied.

ISSUE II: WHETHER THE FIRST INFORMATION REPORT SHOULD BE QUASHED.

The First Information Report should not be quashed as the principles laid down by the

Hon’ble court as well as the conditions mentioned in the provision with regard to quashing an

FIR are not satisfied.


ISSUE I: WHETHER THE WRIT PETITION IS MAINTAINABLE IN THE HON’BLE COURT.

The Writ petition is not maintainable in the Hon’ble Court as no fundamental right of the

petitioner has been violated in the present case.

ISSUE II: WHETHER THE ORDINANCE IS CONSTITUTIONAL.

The ordinance is constitutional as it is in consonance with the fundamental rights enshrined in

the Constitution of India, including Article 14, Article 19 and Article 21.

ARGUMENTS ADVANCED


ISSUE I: THE SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 IS

NOT MAINTAINABLE.

In the present case, the appellants have approached the Hon’ble Supreme Court under Article

1361 which refers to Special leave petition.

The Supreme Court has laid down the grounds on which a Special Leave Petition can be

entertained. It is humbly submitted that firstly, exceptional and special Circumstances2 are not

present [A]; secondly, there is no substantial question of law of General public Importance3 or

any Uncertainty of law4[B]; thirdly,the judgement of the lower court is not erroneous5and

nograve injustice6 has been done [C].

[A] EXCEPTIONAL AND SPECIAL CIRCUMSTANCES ARE NOT PRESENT.

If exceptional and special circumstances are present, then in such cases, the Special Leave

Petition should be entertained.7 Article 1368 does not confer a right of appeal upon the party9.

It gives the Supreme Court discretionary power10 to interfere in cases which are exceptional

in nature.11

The appellant has merely used an Artificial Intelligence entity as an innocent agency to fulfil

his mala fide intentions. There is a clear case of Section 3412 r/w 30213 and 120 B14 which is

made out against the accused. The concepts of innocent agency, common intention and

criminal conspiracy are not extraordinary under criminal law. Therefore in the present case

there is no extraordinary circumstance on the basis of which SLP can be maintainable.1 Article 136, The Constitution of India (1950).2Dhakeswari Cotton Mills Ltd v. CIT, A.I.R.1955 S.C. 65.3CCE v. Standard Motor Products, A.I.R. 1989 S.C. 1298; Chandra Bansi Singh v. State of Bihar, A.I.R. 1984 S.C. 1767.4 Central Exercise and Customs v. M/s Venus Castings (p) Ltd., (2000) 4 S.C.C. 206.5BikajiKeshav v. BrijLalNandlal, A.I.R.1955 S.C. 610.6Pritamsingh v. State, A.I.R. 195 S.C. 169.7 ZahiraHabubullahSekh v. State of Gujarat, (2004) 5 S.C.C. 353.8 Article 136, The Constitution of India (1950).9Bengal Chemical and Pharmaceutical Works Ltd. v. Employees, A.I.R. 1959 S.C. 633.10Narpat Singh v. Jaipur Development Authotity, A.I.R. 2002 S.C. 2036.11Municipal B.D. Pratabgarh v. Mahendra Singh Chawla, A.I.R. 1982 S.C. 1493.12Section 34, Indian Penal code (1860).13 Section 302, Indian Penal Code(1860).14Section 120-B, Indian Penal code (1860).

[B] THERE IS NO SUBSTANTIAL QUESTION OF LAW OR UNCERTAINITY OF LAW.

In kunhayammed v. State of Kerala15, it was held, that it is the duty of the court to entertain

petitions under Article 136 where a substantial question of law of general public importance

has been raised.

It has also been held that if the law has not been predetermined and there is some uncertainity

regarding the same, the Special Leave Petition can be entertained.16

In the present case, there is no substantial question of law involved. The appellant has prayed

for the quashing of the FIR under section 482 of the Code of Criminal Procedure, 19f73. The

laws relating to quashing of FIR are well settled and there is no ambiguity in this area.

Moreover, the appellants are charged under section 302, 34, 120B of Indian Penal Code, 1860

and the laws relating to these offences have been made certain through various judgements of

this Hon’ble court.

[C] JUDGEMENT OF LOWER COURT IS NOT ERRONEOUSAND NO GRAVE INJUSTICEHAS

BEEN DONE.

In the case of BikajiKeshav v. BrijLalNandlal17, The Supreme Court has stated that if the

judgement given by the lower Court is completely baseless and the principle of justice, equity

and good conscience has been ignored, then, in such situations, a person can approach the

Hon’ble court under Article 136.

In the present case, there is no injustice which has been done by the lower court and its

judgement is based on sound principles. The High Court has based its judgement on the

principle that the FIR cannot be quashed at such a preliminary stage and that the police

should be allowed to file the charge sheet. In many cases18, the Supreme Court has laid down

that there is no hard and fast in determining the case in which the High Court can exercise its

extraordinary jurisdiction of quashing the FIR. Moreover, it has been categorically stated that

the High Court can use this power at any stage.19 Therefore, the High Court has rightly used

its discretion to quash the FIR under section 48220 and thereby, no injustice has been caused

to the accused.

15Kunhayammed v. State of Kerala, A.I.R. 2000 S.C. 2587.16Central exercise and Customs v. M/s Venus Castings(Pvt.), A.I.R. 2000 S.C. 1568.17BikajiKeshav v. BrijLalNandlal, A.I.R. 1955 S.C. 610.18Janata Dal v. H.S. Chowdhary, (1992) 4 S.C.C. 305.19Raghubir Saran (Dr.) v. State of Bihar, A.I.R. 1964 S.C. 1;MinuKumari v. State of Bihar, (2006) 4 S.C.C. 359.20 Section 482,The Code of Criminal Procedure (1973).

Therefore, since important conditions regarding the maintainability of the SLP have not been

fulfilled in the present instance, the Hon’ble court should outrightly reject the matter without

going on the merits of the case.

ISSUE II: THE FIR REGISTERED AGAINST MANU SHARMA SHOULD NOT BE

QUASHED.

The power of the High Court to quash a First Information Report is inherent in nature and can

be exercised under section 482 of the Code of Criminal Procedure, 1973.21 This section does

not provide the High Court with any new power and only saves the powers inherent with the

High Court even before the enactment of the code.22 The provision itself provides three

circumstances under which the High Court can exercise the inherent powers, namely, to give

effect to an order under the Code, or, to prevent abuse of the process of court, or to otherwise

secure the ends of justice.23

The Supreme Court has laid down seven alternative conditions under which the High Court

should quash an FIR under section 482 of the Code of Criminal Procedure, 1973.24

It is humbly submitted that, firstly, there is no absurdity in the allegations mentioned in the

FIR [A]; secondly, the allegations made in the FIR against Manu Sharma, prima facie,

constitute an offence [B]; and thirdly, the quashing of FIR would cause injustice [C].

[A] THE ALLEGATIONS MENTIONED IN THE FIR ARE NOT ABSURD.

The allegations mentioned in the First Information Report against Manu Sharma are neither

absurd nor inherently improbable. Therefore, on the basis of the allegations mentioned in the

FIR, there is sufficient ground for proceeding against the accused. It is humbly submitted that

it is Manu Sharma who is responsible and that the Artificial Intelligence system was

manipulated by him [a].

[a] Manu Sharma is responsible and not artificial intelligence.

According to Gabriel Hallevy’s first model, an Artificial Intelligence entity does not possess

any human attributes and should be considered as an innocent agency.25 According to him, a

21State of Karnataka v. L.Muniswamy and Others, A.I.R. 1977 S.C. 1489.22State of Punjab v. Kasturi Lal and Others, A.I.R. 2005 S.C. 4135.23PriyaVrat Singh and Others v. ShyamJiSahai, (2008) 8 S.C.C. 232.24State of Haryana and Others v. Bhajan Lal and Others, A.I.R. 1992 S.C. 604.25 amamama

machine should be treated as a machine and can never be a human being.26 In such peculiar

situations, the perpetrator of the crime will be either the user or the programmer. Usually, a

person who uses an innocent agency for the commission of the crime is liable for the crime

committed by the innocent agency.

If the programmer uses the innocent agency as a means to commit an offence, then the

commission of the offence by the AI entity is attributed to the programmer. The intention of

committing an offence is already fed in the AI entity by the programmer or the user.

Therefore, the action committed by the innocent agency should be taken as the action done of

the programmer.

In the present case, there is a chain of events which establish the guilt of Manu Sharma.

Firstly, Manu Sharma and Riha were fond of each other in their college days but they never

really pursued the matter because of Ish’s presence.27 Moreover, Manu Sharma never looked

at individual clients; however, in this case he took the matter solely in his own hands and did

not allow anyone else from the company to interfere in the case.28 Subsequent to the

commission of the offence, even the M.D. of stargazer stated that the particular action of

Manu Sharma seemed suspicious.29 He also mentions that the AI entity is not completely

anonymous and it was, to a limited extent, influenced by the inputs given by the handlers and

specialists30 and in the present case, the only handler was Manu Sharma.31 Therefore, the

above sequence of events clearly shows the liability of Manu Sharma in the commission of

the offence.

[B] THE ALLEGATIONS MADE IN THE FIR, PRIMA FACIE, CONSTITUTE AN OFFENCE.

The FIR has been registered against Manu Sharma under section 302, 120-B, 34 of the Indian

Penal Code, 1860. In this light, it is put forth that, firstly, Manu Sharma had common

intention to commit murder [a]; and secondly, the offence of Criminal Conspiracy is made

out against the accused [b].

[a] Manu Sharma had requisite common intention to commit murder.

26 id27Moot Proposition, Para 8.28 Moot proposition Para 929 Moot Proposition, Para15.30 Moot Proposition, Para15.31 Moot proposition Para 9

Section 34 of the Indian Penal Code, 1860 recognizes the principle of vicarious liability in

criminal jurisprudence.32 This particular provision makes a person liable for the offence

committed by another with whom he shared a common intention.33

Before showing that Manu Sharma is liable under section 3434, it is humbly submitted before

the Hon’ble court that the act of Riha Kaushal comes under section 300 (Thirdly) and

therefore, amounts to murder. For the application of the provision, there must be an intention

to cause bodily injury and that injury must be sufficient to cause death in the ordinary course

of nature.35A reference to Taylor's Medical Jurisprudence36 will show how easily life may be

destroyed by a blow on the head producing extravasation of blood. Therefore, even a single

blow on the head is sufficient in the ordinary course of nature to cause death.37

It is clear from the facts of the case that the attack was pre-meditated38 and the blow was

caused on the head with a vase which is sufficient in the ordinary course of nature to cause

death.

Subsequently, it is put forth that, firstly, conduct of the parties show common intention [i];

secondly, participation of the accused is not an essential element to attract section 34 [ii]; and

thirdly, the use of the words in furtherance of in section 34 suggests that common intention

was there in this particular case [iii].

[i] Conduct of the parties show common intention.

Common intention can be inferred from the conduct of the parties39 and the totality of the

circumstances.40 Meetings of minds, which is an essential ground for section 32, may be

express or implied.41

It can be seen that there was a meeting of minds between Manu Sharma and Riha. It is this

meeting of minds which is an essential element under section 34.42 This meeting of minds,

32Suresh and Another v. State of Uttar Pradesh, A.I.R. 2001 S.C. 1344.33Rotash v. State of Rajasthan, A.I.R. 2007 S.C. 1765.34 Section 34, The Indian Penal Code, 1860 (45 of 1860).35Virsa Singh v. State of Punjab, A.I.R. 1958 S.C. 465.36Taylor’s Medical Jurisprudence, 4thedn, pg 294.37GudarDusadh v. State of Bihar, A.I.R. 1972 S.C. 952.38Kulwant Rai v. State of Punjab, A.I.R. 1982 S.C. 126.39State of Uttar Pradesh v. Iftikhar Khan and Others, A.I.R. 1973 S.C. 863.40RishideoPande v. State of Uttar Pradesh, A.I.R. 1955 S.C. 331.41 State of Uttar Pradesh v. Iftikhar Khan and Others, A.I.R. 1973 S.C. 863.42Rajesh GovindJagesha and Others v. State of Maharashtra, A.I.R. 2000 S.C. 160.

which forms the common intention between the parties, has to be inferred from the conduct

of the parties.43

It is clear from the facts of the case that Manu Sharma classified the files of Riha so that no

person in the company had access to it.44 Moreover, the system of Stargazer was influenced

by the inputs that were provided by the handlers45 and subsequently, Manu Sharma invited

Riha to a purely experimental section of Stargazer.46

Therefore, it is clear from the conduct of Manu Sharma that he had common intention along

with Riha to commit the murder of Ish.

[ii] Participation is not an essential element under section 34.

The participation of the accused in the commission of the offence is not an essential

requirement in every case to attract section 34 of the Indian Penal Code, 1860.47 Therefore,

participation of the accused need not be shown in each and every case.48

The essentials of section 3449 are common intention and a criminal act done in furtherance of

it by any one of the persons. Presence of the accused is not an essential requirement under

section 34.50 Therefore, the applicability of section 34 cannot be excluded merely on the basis

that the accused was not physically present at the scene of the offence.51

[iii] The use of the words in furtherance of suggests common intention was present.

It is not necessary that the common intention must be to commit the particular crime which

was actually committed.52 The use of the words ‘in furtherance’ in section 34 suggests that it

is also applicable also where the act actually done is not exactly the act jointly intended by

the accused.53Section 34 makes it quite clear that the liability of all the conspirators is for the

criminal act actually done.54Where several persons bear a common unlawful object and

43Masalti v. State of Uttar Pradesh, A.I.R. 1965 S.C. 202.44 Moot Proposition para 9.45 Moot Proposition para 1546 Moot Proposition para 947Surendra Chauhan v. State of Madhya Pradesh, A.I.R. 2000 S.C. 1436.48RamaswamiAyyangar and Others v. State of Tamil Nadu, A.I.R. 1976 S.C. 2027.49 Section 34, India Penal code, 1860.50Anup Singh v. State of Himachal Pradesh, A.I.R. 1995 S.C. 1941.51JaikrishnadasManohardas Desai and Anr.vs. The State of Bombay, A.I.R. 1960 S.C. 889.52BharwadMepa Dana and Another v. The State of Bombay, A.I.R. 1960 S.C. 289.53Mohan Singh v. State of Punjab, A.I.R. 1971 S.C. 2519.54Bashir v. State, A.I.R. 1953 All. 668.

anyone of the persons commit a criminal act within the scope of a common purpose, all are

responsible for that act, whether it was originally contemplated or not.55

It is clear that the crime was committed in furtherance of the common intention of both Manu

Sharma and Riha.56 Thereby, it is put forth that, Manu Sharma had the requisite common

intention along with Riha to commit the murder of Ish.

[b] The offence of criminal conspiracy is made out against the accused.

The gist of the offence of criminal conspiracy, mentioned under section 120-A of the Indian

Penal Code, is an agreement to commit an offence.57The offence of criminal conspiracy is

complete as soon as there is meeting of minds and unity of purpose between the conspirators

to do the illegal act.58 Therefore, the essential element is the agreement to commit an offence.

The unlawful agreement need not be formal or express but may be inherent in and inferred

from the circumstances, especially declarations, acts and conduct of the conspirators.59

Therefore, the agreement may also be implied in nature. Moreover, the presence of the

conspirator at the scene of crime is not an essential element to establish criminal conspiracy.60

It is clearly inferred from the acts and conduct of Riha that there was an implied agreement

between herself and Manu Sharma to commit an offence against Ish. Moreover, there was

unity of purpose between the two of them to eliminate Ish from Riha’s life. Therefore, an

offence of criminal conspiracy is clearly made out against Manu Sharma.

[C] QUASHING OF FIR WOULD CAUSE INJUSTICE.

A First Information Report should be quashed if such exercise of power secures the ends of

justice.61 However, it is humbly submitted that the quashing of FIR in the present case would

cause injustice rather than serving the ends of justice. Thereby, it is put forth that, firstly, a

prima facie case has been made out [a]; and secondly, significant legal issues are involved

[b].

[a] Prima Facie case has been made out.

55Ram Yadav v. State of Bihar, 1988 (36) BLJR 279.56 57State through Superintendent of Police, CBI/SIT v. Nalini and Others, (1999) 5 S.C.C. 253.58Ajay Agarwal v. Union of India and Others, A.I.R. 1993 S.C. 1637.59State through Superintendent of Police, CBI/SIT v. Nalini and Others, (1999) 5 S.C.C. 253.60FirozuddinBasheeruddin and Others v. State of Kerala, A.I.R. 2001 S.C. 3488.61Talab Haji Hussain v. MadhukarPurshottamMondkar and Another, A.I.R. 1958 S.C. 376.

The power given to the High Court under Section 48262 is very wide in its amplitude and

requires great caution in its exercise.63 It has already been shown that the offence of criminal

conspiracy as well as the common intention to commit murder is made out against the

accused, Manu Sharma. Therefore, the court should not quash an FIR when a prima facie

case has been made out against the accused.

[b] Significant legal issues are involved.

Moreover, the High Court should refrain from giving a prima facie order under section 482

when the facts are incomplete and hazy, more so when evidence has not been collected, and

the issues involved, whether factual or legal, are of significant magnitude.64

It is clear that the legal issues involving artificial intelligence are of significant importance in

the modern world.65 Moreover, the fact that the evidence has not been collected and produced

before the court66 clearly shows that this is not a fit case in which the FIR should be quashed.

Therefore, the quashing of FIR in this particular case would lead to injustice and therefore in

the present case it should not be quashed.

62 Section 482, The Code of Criminal Procedure, 1973 (2 of 1974).63Raghubir Saran (Dr.) v. State of Bihar, A.I.R. 1964 S.C. 1.64MinuKumari v. State of Bihar, (2006) 4 S.C.C. 359.65 Cite 66 Moot Proposition Para 20


ISSUE I: THE SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 IS

NOT MAINTAINABLE.

In the present case, the appellants have approached The Supreme Court under Article 136 of

the constitution of India which refers to Special leave petition.

The Supreme Court, in various judgments, has laid down the grounds on which an SLP can

be entertained. It is humbly submitted that firstly, exceptional and special Circumstances67 are

not present [A]; secondly, there is no substantial question of law of General public

Importance68 or any Uncertainty of law69[B]; thirdly, the judgement of the lower court is not

erroneous70and no grave injustice71 has been done [C].

[A] EXCEPTIONAL AND SPECIAL CIRCUMSTANCES ARE NOT PRESENT.

In the case of ZahiraHabibullahshekh v. state of Gujarat,72the Supreme Court has

categorically stated that if exceptional and special circumstances are present, then in such

cases, the Special Leave Petition should be entertained. Article 136 does not confer a right of

appeal upon the party73. It gives the Supreme Court discretionary power74 to interfere in cases

which are exceptional in nature.75

In the present case,the presence of extraordinary circumstance is not there.The appellant has

clearly purchased coke from a decoy website and therefore, it is a clear case in which Section

22 of the Narcotic Drugs and Psychotropic Substances Act should be invoked. The cases

relating to purchase of contraband are fairly common in India and a number of cases come up

regularly regarding the same.

[B]THERE IS NO SUBSTANTIAL QUESTION OF LAW OR UNCERTAINITY OF LAW.

67Dhakeswari Cotton Mills Ltd v. CIT, A.I.R. 1955 S.C. 65.68CCE v. Standard Motor Products, A.I.R. 1989 S.C. 1298; Chandra Bansi Singh v. State of Bihar, A.I.R. 1984 S.C. 1767.69 Central Exercise and Customs v. M/s Venus Castings (p) Ltd., (2000) 4 S.C.C. 206.70BikajiKeshav v. BrijLalNandlal, A.I.R.1955 S.C. 610.71Pritamsingh v. State, A.I.R. 195 S.C. 169.(check year)72ZahiraHabubullahSekh v. State of Gujarat, (2004) 5 S.C.C. 353.73Bengal Chemical and Pharmaceutical Works Ltd. v. Employees, A.I.R. 1959 S.C. 633.74Narpat Singh v. Jaipur Development Authotity, A.I.R. 2002 S.C. 2036.75Municipal B.D. Pratabgarh v. Mahendra Singh Chawla, A.I.R.1982 S.C. 1493.

In kunhayammed v. State of Kerala76, it was held that it is the duty of the court to entertain

petitions under Article 136 where a substantial question of law of general public importance

has been raised.

It is also been held that if the law has not been predetermined and there is some uncertainity

regarding the same, the Special Leave Petition can be entertained.77

In the present case, there is no substantial question of law involved. The appellant has prayed

for the quashing of FIR under section 482 of the Code of Criminal Procedure, 1973. The laws

relating to quashing of FIR are well settled and there is no ambiguity in this area. Moreover,

the appellants have been charged under section 22 of the NDPS act78 and the laws relating to

this offence are no more in controversy. The statute is clear about the interpretation of these

provisions. Therefore, there is no substantial question of law involved nor is there any

uncertainity of law in the present case.

[C] JUDGEMENT OF LOWER COURT IS NOT ERRONEOUS AND NO GRAVE INJUSTICE HAS

BEEN DONE.

In the case of BikajiKeshav v. BrijLalNandlal79, The Supreme Court has stated that if the

judgement given by the lower Court is completely baseless and the principle of justice, equity

and good conscience has been ignored, then, in such situations, a person can approach this

court under Article 136.

In the present case, there is no injustice which has been done by the lower court and its

judgement is based on sound principles. The High Court has based its judgement on the

principle that the FIR cannot be quashed at such a preliminary stage and that the police

should be allowed to file the charge sheet. In many cases80, the Supreme Court has laid down

that there is no hard and fast in determining the case in which the High Court can exercise its

extraordinary jurisdiction of quashing the FIR. Moreover, it has been categorically stated that

the High Court can use this power at any stage.81 Therefore, the High Court has rightly used

its discretion to quash the FIR under section 48282 and thereby, no injustice has been caused

to the accused.

76Kunhayammed v. State of Kerala, A.I.R. 2000 S.C. 2587.77Central exercise and Customs v. M/s Venus Castings(Pvt.), A.I.R. 2000 S.C. 1568.78Narcotics Drugs and Psychotropic Substances Act, 1985.79BikajiKeshav v. BrijLalNandlal, A.I.R. 1955 S.C. 610.80Janata Dal v. H.S. Chowdhary, (1992) 4 S.C.C. 305.81Raghubir Saran (Dr.) v. State of Bihar, A.I.R. 1964 S.C. 1;MinuKumari v. State of Bihar (2006) 4 S.C.C. 359. 82 Section 482, The Code of Criminal Procedure (1973).

Therefore, since important conditions regarding the maintainability of the SLP have not been

fulfilled in the present instance, the Hon’ble court should outrightly reject the matter without

going on the merits of the case.

ISSUE II: THE FIR REGISTERED UNDER SECTION 482 SHOULD NOT BE

QUASHED.

The power of the High Court to quash a First Information Report is inherent in nature and can

be exercised under section 482 of the Code of Criminal Procedure, 1973.83 This section does

not provide the High Court with any new power and only saves the powers inherent with the

High Court even before the enactment of the code.84 The provision itself provides three

circumstances under which the High Court can exercise the inherent powers, namely, to give

effect to an order under the Code, or, to prevent abuse of the process of court, or to otherwise

secure the ends of justice.85

It is humbly submitted that, firstly, the appellant is liable under section 22 of the Narcotic

Drugs and Psychotropic Substances Act [A]; andsecondly,the conditions for quashing an FIR

under Section 48286are not fulfilled [B].

[A] THE APPELLANT IS LIABLE UNDER SECTION 22 OF THE NDPS ACT.

Section 1687 states that one of the conditions for making a person liable is the purchase of

Cocoa plant and for the same; the punishment may extend to ten years or a fine, which may

extend to one lakh rupees. The term ‘purchase’ has not been defined anywhere in the NDPS

Act.

The definition of purchase has to be construed in a wider sense.88 The term ‘purchase’ should

be interpreted in a comprehensive sense and should include voluntary as well as involuntary

transfer.89 The main ingredients of purchase are 1) There must be acquisition of goods90 2)

The acquisition shall be for cash deferred payment or other valuable consideration91and 3) the

83State of Karnataka v. L.Muniswamy and Others, A.I.R. 1977 S.C. 1489.84State of Punjab v. Kasturi Lal and Others, A.I.R. 2005 S.C. 4135.85PriyaVrat Singh and Others v. ShyamJiSahai, (2008) 8 S.C.C. 232.86 Section 482, The Code of Criminal Procedure (1973).87Section 15, Narcotics Drugs and psychotropic Substances Act(1985).88State of Madhya Pradesh v. Orient Mills Ltd. A.I.R. 1977 S.C. 687.89Devi Das Gopal krishnan and others v. State of Punjab and others,A.I.R. 1967 S.C. 1895.90 State of Himachal Pradesh and Others v. Gujarat Ambuja Cement Ltd. and others, A.I.R. 2005 S.C. 3936.91Madhya Pradesh and others v. Orient Mills Ltd.,A.I.R. 1977 S.C. 687.

valuable consideration referred above should be free from any charge, mortgage,

hypothecation or pledge.92

In the present case, all the three conditions have been fulfilled as the appellant had tried to

acquire the goods as soon as his robot had ordered the coke.93 The payment details and

address mentioned are of the appellant and therefore, he will be considered as the buyer for

any third person.94 Moreover, as the robot has provided the payment details, the second and

third conditions are also fulfilled. Even though all the conditions of purchase are fulfilled, an

involuntary transfer also comes under the category of purchase.

[B] CONDITIONS FOR QUASHING FIR UNDER SECTION 482 ARE NOT FULFILLED.

The Supreme Court has laid down various guidelines for the quashing of an FIR. These

conditions are as follows:

1) No prima facie case against the accused is established, even if the allegations

mentioned in the FIR are taken on their face value.95

2) The allegations mentioned in the FIR do not, in any way, disclose a cognizable

offence for which investigation under section 156(1) is required.96

3) Whether the probability of the conviction of the accused is very bleak and if the case

is continued, there would be great hardship and oppression caused to the accused.97

4) If the proceedings would not serve the ends of justice and will result in the abuse of

the process of the Court.98

It is humbly submitted that, firstly, a prima facie case is established [a]; secondly, allegations

mentioned in the FIR disclose a cognizable offence [b]; thirdly, probability of conviction is

high [c]; and fourthly, the proceedings would clearly serve the ends of justice [d].

[a] Prime facie case is established.

Even If the allegations mentioned are taken at their face value, if there is no prima facie case

which is established against the accused, then the FIR can be quashed by the High Court. In

92Devi Das Gopal krishnan and others v. State of Punjab and others,A.I.R., 1967 S.C. 1895.93 Moot Proposition Para 18.94 Moot Proposition Para 18.95R.P. Kapur v. State of Punjab, A.I.R 1960 S.C. 866.96 State of Haryana v. Bhajan Lal,(1992) Supp.(1) S.C.C. 335.97Narinder Singh v. State of Punjab, (2014) 6 S.C.C. 466.98Prashant Bharti v. State of NCT of Delhi, (2013) 9 S.C.C. 293.

the present case, there is a clear case under section 2299 which is made out against the

accused.

[b] Allegations mentioned in the FIR disclose a cognizable offence.

The accused is charged under S.22100, which is a cognizable offence as can be seen from S.37

(a)101 of the NDPS Act, which states that every offence punishable under NDPS Act shall be

cognizable in nature.

[c] Probability of conviction of the accused is high.

If, after seeing the allegations mentioned in the FIR, the court is of the view that the chances

of the accused getting convicted is bleak and moreover, if the proceedings are continued, then

it would cause great hardship to the accused, the court, under Section 482102, can quash the

FIR. However, in the present case, it is put forth that there is a clear chance of the accused

getting convicted. The delivery address and the payment details acquired by the police

officers are of the accused103 and this surely creates a suspicion against the accused.

Therefore, the FIR should not be quashed in the present case.

[d] Proceedings will serve the ends of justice.

In the present case, the FIR is filed against a person who has tried to purchase the Narcotic

substances from a decoy website, which was setup by the police to catch drug peddlers and in

the process, he has been caught red handed.104 Therefore, merely initiating proceedings in

such a case, which involves the purchase of contraband, would never cause injustice and can

never result in the abuse of the process of law. Moreover, there is a clear chance of the

accused getting convicted.

Therefore, since none of the conditions required for the quashing of FIR are fulfilled, the FIR

should not be quashed and proceedings should be allowed to continue.


99Section 55, Narcotics Drugs and psychotropic Substances Act(1985).100Section 22, Narcotics Drugs and psychotropic Substances Act(1985).101Section 37(a), Narcotics Drugs and psychotropic Substances Act(1985).102 Section 482, The Code of Criminal Procedure (1973).103 Moot Proposition, Para18.104 Moot Proposition, Para18.

ISSUE I: THE PRESENT WRIT PETITION UNDER ARTICLE 32 OF THE INDIAN

CONSTITUTION IS NOT MAINTAINABLE.

A person or citizen can only file a writ in the Supreme Court of India if his Fundamental right

is violated105. No question other than fundamental Right is determined by Article 32106,

including interlocutory relief.107Judiciary is the ultimate protector of fundamental rights108 and

a writ under Article 32 will not lie for the enforcement of government policy or directive

principle.109In other words, violation of Fundamental Rights is a sine qua non for the exercise

of right conferred by the Article 32110.

In the light, it is submitted that, firstly, the petitioner does not have Locus Standi to file the

writ petition [A]; secondly, Article 14 of the Constitution of India is not violated [B]; thirdly,

Article 19 of the Constitution of India is not violated [C]; and fourthly, Article 21 of the

Constitution of India is not violated [D].

[A] THE PETITIONER DOES NOT HAVE LOCUS STANDI TO FILE THE WRIT PETITION.

It is evident from various judgements of the Hon’ble Court that only a person, whose

fundamental right is violated, has the locus Standi to file a writ petition in the Supreme

Court.111 The legal right which is enforced under Article 32 must ordinarily be the legal right

of the petitioner and of nobody else.112 The rights which can be enforced must ordinarily be

the rights of petitioner himself.113Petition cannot be filed by any other person.114

In the present case, there has been no violation of the fundamental right of the petitioner. The

ordinance was passed with the sole motive to protect public interest. The ordinance was

passed to discourage citizens from committing crimes and then blaming on machines115 that

couldn’t be prosecuted or punished under the law prevailing in the country.

105 Andhra Industrial works v. Chief Controller of Imports, A.I.R. 1974 S.C. 1539.106 Star Sugar mills v. State of Uttar Pradesh, A.I.R. 1984 S.C. 37.107 Express News Paper v. Union of India, (1986) 1 S.C.C. 133.108Rameshwar Prasad v. Union of India, A.I.R. 2006 S.C.109 B. Krishna V. Union of India, (1990) 3 S.C.C. 65.110Hindi HarshakSamiti v. Union of India, A.I.R. 1990 S.C. 851.111S.sinha v. S.Lal& Co., A.I.R. 1973 S.C. 2720.112 G.C College V. GuahatiUniverity, A.I.R. 1973 S.C. 761.113State of A.P V. Mc dowell& Co., (1996) 3 S.C.C. 709.114State of A.P V. Mc dowell& Co., (1996) 3 S.C.C. 709.

115 Moot Proposition para 19.

[B] THERE IS NO VIOLATION OF ARTICLE 14 OF THE CONSTITUTION.

Article 14 of the Constitution of India ensures equal protection of laws which means the right

to equal treatment in similar circumstances.116

The ordinance does not violate Article 14 of the Constitution of India as the Doctrine of

Reasonable Classification117 protects the ordinance and moreover, the ordinance is not

arbitrary in nature.118

[C] THERE IS NO VIOLATION OF ARTICLE 19 OF THE CONSTITUTION.

Article 19(1) (g) guarantees right to profession to its citizen.119 It provides that all citizens

have the right to practice any profession.120 Although, Article 19(6) provides for restrictions,

the same has to be reasonable and in the interest of the general public.121 Therefore, the

conclusion is irresistible that the rights protected by article 19(1), in so far as theyrelate to

rights attached to the person, that is, the rights referred to in sub-clauses (a) to (e) and (g), are

rights which only a free citizen, who has the freedom of his person unimpaired, can

exercise.122 The state can make any law imposing reasonable restrictions in the interest of

general public.123

In the present case, the ordinance passed by the central government was in public interest so

as to protect law and order in the country. The step was taken as a measure to restrict the

individuals to commit the crimes and blame the entities which are not covered under any law

prevailing in the country, that is, Artificial Intelligence entities.124 The ordinance was passed

to restrict the individuals from committing the crime and absolving themselves from the

liability arising from illegal act of theirs. Therefore, the ordinance is very well covered under

article 19(6) of the constitution and hence, does not violate any fundamental right of the

petitioner.

116Shrikishan Singh v. State of Rajasthan, A.I.R. 1955 S.C. 795.117R.K.Garg and Others v. Union of India and Others, (1981) 4 S.C.C. 675.118E.P.Royappa v. State of Tamil Nadu and Another, A.I.R. 1974 S.C. 555.119 120 121 122K. Rajendran&Ors. Etc. Etc vs State Of Tamil Nadu, 1982 AIR 1107.123 Article 19(6), The Constitution of India(1950).124 Moot proposition Para 19

[D] THAT THERE IS NO VIOLATION OF ARTICLE 21 OF THE CONSTITUTION.

The fundamental right guaranteed under Article 21 relates only to the acts of State or acts

under the authority of the State which are not according to procedure established by law. The

main object of Article 21 is that before a person is deprived of his life or personal liberty by

the State, the procedure established by law must be strictly followed. Right to Life means the

right to lead meaningful, complete and dignified life. It does not have restricted meaning. It is

something more than surviving or animal existence. The meaning of the word life cannot be

narrowed down and it will be available to every citizen of the country. The Apex Court gave

a new dimension bystating that the procedure cannot be arbitrary, unfair or unreasonable.125

It is clear from the facts that the government has the authority to pass the ordinance and

although, right to livelihood of few citizens is being affected but that was done merely to

serve the larger interest of the community. The basic intent to pass the ordinance was to serve

the interest of the public at large.

ISSUE II: THE ORDINANCE IS CONSTITUTIONALLY VALID.

The ordinance making power is given to the president of India under Article 123 of the

Constitution of India. An ordinance is a law126 and therefore, can impose a restriction on the

fundamental rights given under Article 19 (1).127

It is humbly submitted that, firstly, the ordinance does not violate the fundamental right given

under Article 19 (1) (g) [A]; secondly, the ordinance does not violate the Right to Life given

under Article 21 [B]; and thirdly, the ordinance is not arbitrary and hence, does not violate

Article 14 of the constitution of India [C].

[A] THE ORDINANCE DOES NOT VIOLATE 19 (1) (G).

The fundamental right under Article 19 (1) (g)128 gives the right to a citizen to practice any

profession, or to carry on any occupation, trade or business. Article 19 (1) guarantees those

great and basic rights which are recognized and guaranteed as the natural rights inherent in

the status of a citizen of a free country.129

125Maneka Gandhi vs Union Of India, A.I.R. 1978 S.C. 597.126Article 13 (2), Constitution of India (1950).127Article 19 (1), Constitution of India (1950).128Article 19 (1) (g), Constitution of India (1950).129State of West Bengal v. Subodh Gopal Bose, A.I.R. 1954 S.C. 92.

The right under Article 19 (1) (g) can only be taken away in the interest of the general

public.130Of the two tests as to the validity of the legislation under Article 19, the first is the

test of reasonableness, and the second test is whether the restriction sought to be imposed on

the fundamental right falls within clauses (2) to (6).131

It is humbly submitted that, firstly, the restriction imposed through the ordinance is

reasonable [a]; and secondly, the restriction is in the interest of the general public [b].

[a] The restriction imposed is reasonable.

The reasonability of the restriction imposed must be determined from the standpoint of the

interests of the general public and not from the point of view of the persons upon whom the

restrictions are imposed.132 A strong nexus between the restriction and the object of the

ordinance would go a long way in establishing constitutionality of the ordinance.133 It has

been held that the term ‘restriction’ includes prohibition as well.134

The citizens have no right to carry on a business which is dangerous135 to the society or

injurious to health, safety and welfare of general public.136 Therefore, total prohibition in such

cases is reasonable.137

The object of the ordinance is to prohibit the people from using Artificial Intelligence entities

to commit crimes138 and therefore, the prohibition imposed is clearly connected with the

object of the ordinance.139 Moreover, the prohibition has been imposed after two such

instances in quick succession. It is clear that such entities can be used as innocent agencies to

commit crimes and therefore, is dangerous to the public welfare. Using these entities to

commit crimes would lead to disorder in the society. Therefore, no matter how important the

right of a citizen may be, it has to yield to the larger interests of the community.140

[b] Ordinance is in the interest of general public.

130 Article 19 (6), Constitution Of India (1950).131DharamDutt v. Union of India, A.I.R. 2004 S.C. 1295.132Hanif Qureshi Mohd. V. State of Bihar, A.I.R. 1958 S.C. 731.133M.R.F. Ltd. v. Inspector Kerala Govt., (1998) 8 S.C.C. 227.134Indian Handicrafts Emporium and Others v. Union of India and Others, A.I.R. 2003 S.C. 3240.135Cooverjee B. Bharucha v. Excise Commissioner, A.I.R. 1954 S.C. 220.136State of Bombay v. F.N.Balsara, A.I.R. 1951 S.C. 318.137Har Shankar v. Deputy Excise Commissioner of Taxation, A.I.R. 1975 S.C. 1121.138 Moot Proposition para 19139 Moot Proposition para 19140KesavanandaBharati v. State of Kerala, A.I.R. 1973 S.C. 1461.

The fundamental right to practice any profession, or to carry on any occupation, trade or

business can only be restricted if the restriction is in the interest of the general public.141

The ordinance might be ‘in the interests of the general public’ even though it affects the

interests of particular individuals, or causes hardship to particular individuals.142 The phrase

‘in the interest of general public’ has wide amplitude and includes public order, public

security and public morals.143Any financial loss caused to any person through the ordinance is

insignificant as the ordinance serves the larger public interest.144It is in the interest of

everyone that the crimes should be effectively investigated and the guilty prosecuted.145

Therefore, the ordinance is clearly in the general public interest since it would prevent crimes

by, or through, Artificial Intelligence entities and prevent public disorder and secure public

welfare. Moreover, it would prevent people from blaming Artificial Intelligence entities for

the crimes committed by them and would ensure effective investigation and punishment to

the guilty. Therefore, the ordinance protects the public order and is in the interest of the

general public.

[B] THE ORDINANCE DOES NOT VIOLATE ARTICLE 21.

Article 21 is not attracted in case of trade or business. The right to carry on any trade or

business and the right to life and personal liberty under Article 21 are too remote to be

connected together.146Moreover, the right to livelihood is included within Article 21 but when

the business or trade is injurious to public health or has insidious effect on public morale or

public order, it can be restrained.147

It is clear that Artificial Intelligence Agencies have been used, and can be used, to commit

crimes which would cause disorder in the society. Therefore, Article 21 would not be

attracted in this particular case.

141Article 19 (6), Constitution of India (1950).142Narendra v. Union of India, A.I.R. 1960 S.C. 430.143Municipal Corporation of the City of Ahmedabad and Others v. Jan Mohammad Usmanbhai and Another, A.I.R. 1986 S.C. 1205.144The State of Maharashtra v. HimmatbhaiNarbheram Rao and Others, A.I.R. 1970 S.C. 1157.145SmtSelvi and Others v. State of Karnataka, A.I.R. 2010 S.C. 1974.146Sodan Singh and Others v.New Delhi Municipal Committee and Others, (1989) 4 S.C.C. 155.147M.J.Sivani and Others v. State of Karnataka and Others, A.I.R. 1995 S.C. 1770.

Also, according to the surveys conducted in India, it is clear that the rate of depression among

the Indian youth due to parental deprivation is very high148 (i.e. about 39.28%149) which

makes India a niche market for companies like stargazer.

[C] THE ORDINANCE DOES NOT VIOLATE ARTICLE 14.

Article 14 of the Constitution of India ensures equal protection of laws which means the right

to equal treatment in similar circumstances.150 But such equal protection of law need not be

adhered to when there is reasonable classification and the impugned law is arbitrary.151

It is humbly submitted that, firstly, the classification made by the ordinance is reasonable [a];

and secondly, the ordinance is not arbitrary in nature [b].

[a] The classification is reasonable.

Article 14 of the Indian Constitution does not prohibit reasonable classification.152 The test

for reasonable classification is that, firstly, the classification must be founded on an

intelligible differentia which distinguishes those that are grouped together from others and

secondly, that differentia must have a rational nexus to the object sought to be achieved by

the Act.153 It is thereby put forth that firstly, there exists an intelligible differentia [i]; and

secondly, there is a rational nexus between the differentia and the object of the ordinance [ii].

[i] Intelligible differentia.

The business relating to Artificial Intelligence is prima facie¸ and quiet significantly different

from any other business due to the advanced technology that is required for such a business

and the disorder that it could cause to the society.

Therefore, it has been rightly differentiated from any other form of business.

[b] Rational nexus.

The fact that the ordinance has differentiated the business of Artificial Intelligence and

subsequently, prohibited it is clearly linked with the object that the ordinance seeks to

achieve.148Poongothai S, Pradeepa R, Ganesan A, Mohan V. Prevalence of depression in a large urban South Indian population - The Chennai Urban Rural Epidemiology Study (CURES-70) PloS One. 2009;4:E7185.149 Badrinarayana A. Study of suicidal risk factors in depressive illness. Indian J Psychiatry. 1980;22:81–3150Shrikishan Singh v. State of Rajasthan, A.I.R. 1955 S.C. 795.151 152BudhanChowdhry v. State of Bihar, A.I.R. 1955 S.C. 191.153R.K.Garg and Others v. Union of India and Others, (1981) 4 S.C.C. 675.

It has already been stated that the object of the ordinance is to prohibit the people from using

Artificial Intelligence entities to commit crimes and therefore, the prohibition imposed is

clearly connected with the object of the ordinance.

[b] The ordinance is not arbitrary.

An arbitrary state action violates Article 14 of the Constitution of India.154 The ordinance or

the government policy cannot be held to violate Article 14 unless it is wholly unreasonable.155

For deciding whether a particular decision was arbitrary or reasonable, the existing

circumstances at the time of taking the decision had to be examined.156 The court should not

interfere where the state seeks to promote the common good of the people.157

It is clear that the two successive incidents relating to Artificial Intelligence agencies clearly

warranted a stringent action and moreover, it has already been stated that the ordinance

promotes the public welfare at large and therefore, is not unreasonable.

Moreover, an ordinance cannot be struck down only on the ground that it is arbitrary.158

154E.P.Royappa v. State of Tamil Nadu and Another, A.I.R. 1974 S.C. 555.155Khoday Distilleries Ltd. v. State of Karnataka, A.I.R. 1996 S.C. 911.156Patna Regional Development Authority v. RashtriyaPariyojnaNirman Nigam, A.I.R. 1996 S.C. 2074.157Mohinder Kumar Gupta v. Union of India, (1995) 1 S.C.C. 85.158State of Bihar v. Bihar Distillery Ltd., A.I.R. 1997 S.C. 1511.

PRAYER

Wherefore, in the light of the facts stated, arguments advanced and authorities cited, it is most

humbly prayed and implored before the Supreme Court of India, that it may be graciously

pleased to adjudge and declare that:

1) The SLP’s in the present case are not maintainable.

2) The FIR against Manu Sharma should not be quashed.

3) The FIR against Vaibhav Sharma should not be quashed.

4) The writ petition filed under Art. 32 should not be held maintainable

5) The ordinance is constitutionally valid.

Also, pass any other order that it may deem fit in the favour of the RESPONDENT to meet the

ends of equity, justice and good conscience.

For this act of Kindness, the Respondent shall duty bound forever pray.

Place: Delhi s/d

Dated: 20th March, 2015 Counsel for Respondents

Documents

Respondent Final MemoMemo