Moot Court Memorial on behalf Petitoner., Papers of Mock Trial and Moot Court

Download Moot Court Memorial on behalf Petitoner. and more Papers Mock Trial and Moot Court in PDF only on Docsity! AGNEL SCHOOL OF LAW, 2ND NATIONAL LEVEL MOOT COURT COMPETITION- 2024 MEMORIAL ON BEHALF OF PETITIONER TEAM CODE- AGNEL SCHOOL OF LAW 2ND NATIONAL LEVEL MOOT COURT COMPETITION VASHI, NAVI MUMBAI BEFORE THE HON’BLE SUPREME COURT OF INDUS IN THE MATTER X……………………………………………………………………………………..PETITIONER VERSUS STATE OF GONDA………...……………………………………………………RESPONDENT (Under Article 32 OF THE INDIAN CONSTITUTION) MOST RESPECTFULLY SUBMITTED BY, COUNSEL APPEARING ON BEHALF OF THE RESPONDENT AGNEL SCHOOL OF LAW, 2ND NATIONAL LEVEL MOOT COURT COMPETITION- 2024 MEMORIAL ON BEHALF OF PETITIONER TABLE OF CONTENT 1. LIST OF ABBREVIATIONS 2. INDEX OF AUTHORITIES 3. STATEMENT OF JURISDICTION 4. STATEMENTS OF FACT 5. ISSUES RAISED 6. SUMMARY OF ARGUMENTS 7. ARGUMENTS ADVANCE 8. PRAYER AGNEL SCHOOL OF LAW, 2ND NATIONAL LEVEL MOOT COURT COMPETITION- 2024 MEMORIAL ON BEHALF OF PETITIONER JUDICIAL DECISIONS PREFERRED 1) Ujjabai vs State of UP 1963 SCR 778 2)A K Roy vs Union of India AIR 182 SC 710 3)Hussainara Khatoon Vs State of Bihar 4)Vishakha vs State of Rajasthan AIR 1997 SC 3011 5)E.P. Royappa V. State of Tamil Nadu,1974 AIR 555 6)Dhanjoy Chaterjee vs State of West Bengal 11.01.1994 7)Laxman Naskar V. State of West Bengal (2000) 8)Prafulla vs State of Orissa 9)Rantanlal vs Prahlad Jat, 2017 AGNEL SCHOOL OF LAW, 2ND NATIONAL LEVEL MOOT COURT COMPETITION- 2024 MEMORIAL ON BEHALF OF PETITIONER AGNEL SCHOOL OF LAW VASHI, NAVI MUMBAI STATEMENT OF JURISDICTION Article 32 in Constitution of India Remedies for enforcement of rights conferred by this Part (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction ill or any of the powers exercisable by the Supreme Court under clause (2). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution. AGNEL SCHOOL OF LAW, 2ND NATIONAL LEVEL MOOT COURT COMPETITION- 2024 MEMORIAL ON BEHALF OF PETITIONER AGNEL SCHOOL OF LAW VASHI, NAVI MUMBAI STATEMENT OF FACTS 1)Background: Indus is a democratic republic country with 29 states having separation of powers. State of Gonda is one of the states among them. State of Gonda have a place name Ponda in Ponda there were incident of train burning which is followed by riots in state of Gonda. In this unfortunately riots on dated 02-02-2002 convicts were found guilty of heinous crimes such as gang rape, murder of family members of victim including Eight minors. 2) Crime scene: There were large scale riots in state of Gonda on 02-02-2002. The predators committed heinous crimes like gang rape and murder of family members of petitioner. Accused committed gang rape on petitioner also. Petitioner also gang raped mother of petitioner and murdered. Accused also gang raped cousin of petitioner who just delivered a baby and murdered. Eight minors along with only two days old infant also murdered by accused. Petitioner daughter murdered by smashing her head. Two minor brothers and two minor sisters are also murdered by accused. All other members of family who were uncle, aunt, and maternal uncle and three cousins of petitioner were also murdered. 3) Trial of the case: Although place of offence is state of Gonda but for safety of witnesses and for fair trial it is transferred from state of Gonda to state of Khelrashtra. The said trial was concluded by life imprisonment to said accused for committing heinous crime. Aftermath the appeal preferred by state of Khelrashtra and accused rejected by honourable High court of Khelrashtra and confirmed their conviction. The said appeal then travelled to Indus Apex court and Apex court conferred decision of High court 4) Decision of the case: Both Honourable High court of state of Khelrashtra and honourable Apex court of Indus conferred life imprisonment of accused 5) Application for Remission: AGNEL SCHOOL OF LAW, 2ND NATIONAL LEVEL MOOT COURT COMPETITION- 2024 MEMORIAL ON BEHALF OF PETITIONER AGNEL SCHOOL OF LAW VASHI, NAVI MUMBAI SUMMARY OF ARGUMENTS Issue 1 Whether the petition filed by one of the victim in Writ Petition (Crl.) is maintainable? 1. Yes, the petitioner has right to filled writ petition. 2. Right is given by the constitution. 3.The right is given under article 32 and 226 of the constitution this is the fundamental rights which provides for the remedy of fundamental rights 4.The remedy is given for the violation of article 14 and 21 5. Article 32 is the soul of constitution said by Ambedkar 6. Speedy remedy is required is such type of crime. Issue 2 Whether the writ petition filed as public litigation interest (PIL) assailing the impugned orders of remission dated 29.02.2022 are maintainable? 1. Yes, the writ petition filled as PIL is maintainable. 2. As it is issue of the public as the large. 3. It violate the right of the victim. 4. It will influence other criminal. 5. It can be also used as precedent. 6. PIL as writ petition filled for the violation of fundamental Right. AGNEL SCHOOL OF LAW, 2ND NATIONAL LEVEL MOOT COURT COMPETITION- 2024 MEMORIAL ON BEHALF OF PETITIONER Issue 3 Whether the state of Gonda has power to remit the punishment of the accused, when their trial took place in the jurisdiction of the state of khelrashtra? 1. The Gonda has no power to remit the punishment of accused. 2. The state of Gonda is not a appropriate government to remit the convict. 3. According to section 432(7) and 433 of the CRPC the appropriate government is the case where tried. 4. The khelrashtra is the appropriate government as the case is tried in the khelrashtra state Issue 4 Whether remission policy of constitution of Indus permits to remit the punishment in such kind of crime/offences? 1. This remission led to the violation of the fundamental right of the accused. 2. Remission should not be granted as it is heinous crime. 3. Granting the remission can lead to the violation of the fundamental rights of the victim under article 14 and 21 of the constitution. 4. As this crime is heinous and granting the remission can lead and effect on the society. Issue 5 Whether victim has a right to challenge the decision of the appropriate government in view power exercise the policy decision which is enshrined by the constitution? 1. Yes victim has right to challenge the decision of the appropriate government. 2. Because it is a heinous crime. 3. It will create the evil impact to the society. 4. It is against of remission policy. 5. Remission is not permissible in the heinous crime AGNEL SCHOOL OF LAW, 2ND NATIONAL LEVEL MOOT COURT COMPETITION- 2024 MEMORIAL ON BEHALF OF PETITIONER AGNEL SCHOOL OF LAW VASHI, NAVI MUMBAI ARGUMENT ADVANCE 1. Whether the petition filed by one of the victims in writ petition (crl) is maintainable? -Yes! The petition filed by one of the victims in writ petition (crl) is surely maintainable 1.Crime The incident that took place in the territory in of Gonda has a evil effect over the human ideology, as the crime committed was heinous is nature and which will left with adverse effect over the democratic society. The victim mother cousin and the victim herself was brutally gang raped and murdered, including the eight minors and two-day-old infant and 3-year-old daughter was murdered by smashing her head. On a rock this heinous and rarest of the rare crime which took place at Gonda result in an instant shameful act for human habit. A constitution is the aggregate of fundamental principles or established precedent that constitute the legal basis of a polity organization other type of entity and commonly determines how that entity is to be governed. Indus nation is federal democratic and republic nation which upholds the fundamental rights of every citizen of the nation. The written constitution of Indus contributes towards the safety, integrity and dignity of every individual. As rightly said by PLATO- Democracy is a charming form of government full of variety and disorder and dispensing a sort of equality to equals and unequal a like. Article 32-(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution. Article 32 of the Indian Constitution gives the right to individual to move to the supreme court to seek justice when they feel that their right has been 'unduly deprived'. The apex court is given AGNEL SCHOOL OF LAW, 2ND NATIONAL LEVEL MOOT COURT COMPETITION- 2024 MEMORIAL ON BEHALF OF PETITIONER c)PIL is brought before the court not for the purpose of enforcing the right of one individual against another as happened in the case of ordinary litigation, but it is intended to promote and vindicate public interest. d)PIL demands that violations of constitutional and legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and unredressed. E) PIL is essentially a co-operative effort on the part of the petitioner, the state or public authority, and the court to secure observance of the constitutional or legal rights, benefits and privileges conferred upon the vulnerable section of the community and so reach social justice to term. f) In PIL, litigation is undertaken for the purpose of redressing public injury, enforcing public duty, protecting social, collection, diffused rights and interests or vindicating public interest. g) In PIL, the role held by the court is more assertive than in traditional action, it is creative rather than passive and it assumes a more positive attitude in determining acts. h) Though in PIL court enjoy a degree of flexibility unknown to the trial of traditional private law litigation, whatever the procedure adopted by the court it must be procedure known to judicial tenets and characteristics of a judicial proceeding. i) In a PIL, unlike traditional dispute resolution mechanism, there is no determination on adjudication of individual rights. 5. Principles of PIL The Supreme Court evolved the following principles in regards to PIL: 1. The Court in exercise of power under Article -32 & 226 of constitution can entertain a petition file by any interested person in the welfare of the people who are in a disadvantage position and thus not in a position to knock the doors of the Court. The Court is constitutionally bound to protect the fundamental rights of such disadvantaged people and direct the state to fulfil its constitutional promises. 2. When the issues of public importance, enforcement of the fundamental rights of large number of people vis-a-vis the constitutional duties and functions of the state are raised, the Court treat letter or a telegram as a PIL in such cases, the Court relaxes the procedural laws and also the law relating to pleadings. AGNEL SCHOOL OF LAW, 2ND NATIONAL LEVEL MOOT COURT COMPETITION- 2024 MEMORIAL ON BEHALF OF PETITIONER 3. Whenever injustice is meted out to a large number of people, the Court will not hesitate to step into invoke Articles-14 & 21 of the Constitution of Indus as well as the international conventions on Human Rights which provides for a reasonable and fair trial. 4. The common rule of Locus Standi is relaxed so as to enable the Court to look into the grievance complained on behalf of the poor, deprived, literate & the disabled who cannot vindicate the legal wrong or legal injury caused to them for violation of any constitutional or legal right. 5. When the Court is prima facie satisfied about violation of any Constitutional right of a group of people belonging to the disadvantaged category, it may not allow the state or the government from rising the questions as to the maintainability of petition. 6. Although procedural laws apply on PIL cases, the question as to whether the principal of res judicata or principles analogous there to would apply depend on the nature of the petition an also facts and circumstances of the case. 7. The dispute between two warning groups purely in the realm of private law would not be allowed to be agitated as a PIL. 8. However, in an appropriate case, although the petitioner might have moved a Court in his private interest & for redressal of the personal grievance, the Court in furtherance of the public interest may treat it necessary to inquire into the state of affairs of the subject of litigation in the interest of justice. 9. The Court in special situations may appoint commission or other bodies for the purpose of investigating into the allegations & finding out facts. It may also direct management of public in situation taken over by such commission. 10. The Court will not ordinarily transgress into a policy. It shall also take utmost care not to transgress its jurisdiction while purporting to protect the rights of the people from being violated. 11. The Court would ordinarily not step out of the known areas of judicial review. The High Court although may pass an order for doing complete justice to the parties, it does not have a power akin to Article-142 of the Constitution of Indus. 12. Ordinarily the High Court should not entertain writ petition by way of PIL questioning constitutionality or validity of a statute or statutory of rule. AGNEL SCHOOL OF LAW, 2ND NATIONAL LEVEL MOOT COURT COMPETITION- 2024 MEMORIAL ON BEHALF OF PETITIONER 6. S.C Guidelines for admitting PIL- The PIL has now to occupy an important field in the administration of law. It should not be allowed to become 'Publicity Interest Litigation' or 'Politics Interest Litigation' or 'Private Interest Litigation' or 'paisa Interest Litigation' or 'Middle-class Interest Litigation' (MIL). The supreme court, in this context, observed. "PIL is not a pill or a panacea for all wrong. It was essentially meant to protect basic human rights of the weak and the disadvantage and was a procedure which was innovated where a public-spirited person files a petition in effect of behalf such person who on account of poverty, helplessness or economic and social disabilities could not approach the court for relief. There have been, in recent times increasingly instances of abuse of PIL. Therefore, there is a need to re- emphasise the parameters within which PIL can be resorted to by a petitioner and entertained by the court". Therefore, the supreme court laid down the following guidelines for checking the misuse of the PIL. 1.the court must encourage genuine and Bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations. 2.Instead of every individual judge devising his own procedure for dealing with PIL, it would be appropriate for each high court to properly formulate rules for encouraging the genuine PIL filed and discouraging PIL field with oblique motives. 3.The court should primary facie verify the credentials of the petitioner before entertainment the PIL. 4.the court shall be primary facie satisfied regarding the correctness of the contents of petition before entertainment the PIL. 5.the court should be fully satisfied that substantial public interest is involved before entertaining the petition. 6.the court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over another petition. 7.the court before entertainment the PIL must ensure that the PIL is aimed at public injury. The court should also ensure that there is no person gain, private motive or oblique motive behind filing PIL. AGNEL SCHOOL OF LAW, 2ND NATIONAL LEVEL MOOT COURT COMPETITION- 2024 MEMORIAL ON BEHALF OF PETITIONER 3) whether the state of Gonda has power to remit the punishment of the accused, when their trial took place in the jurisdiction of the state of Khelrashtra? 1) NO, the state of Gonda has no power remit the punishment of the accused as it is not an appropriate government to remit the case 2)According to the section 432 of the Crpc the state of Gonda is a not an appropriate government. Though the offence is committed in the jurisdiction at the Gonda state. The place of trail is Khelrashtra so as per section 432 of the Crpc the khelrashtra is the appropriate government to remit the punishment of the accused. 3)The appropriate government means: - Where a person convicted by court in one state is transferred to another state, the power of remission of the sentence is vest in the state within which the offender was sentenced and not the government of the state to which the prisoners is transferred to serve the imprisonment 4) According to Section-432 power to suspend or remit sentences 1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any lime, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. 2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists. 6) The provisions of the above Sub-Sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his properly. AGNEL SCHOOL OF LAW, 2ND NATIONAL LEVEL MOOT COURT COMPETITION- 2024 MEMORIAL ON BEHALF OF PETITIONER 7) In this section and in section 433, the expression “appropriate Government” means, a) In cases where the sentence is for an offence against, or the order referred to in Sub- Section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government. b) In other cases the provisions of the above Sub-Sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his properly. In this section and in section 433, the expression “appropriate Government” means, in cases where the sentence is for an offence against, or the order referred to in Sub-Section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government; in other cases, the Government of the State within which the offender is sentenced or the said order is passed. 6) Gonda state does not have a jurisdiction to remit the punishment of the accused. When the authority has no jurisdiction, the order become void. 7) Appropriate government is Khelrashtra to remit the punishment of the accused. As the trial was made in Khelrashtra. Khelrashtra state has a jurisdiction to remit the punishment of accused. 8) The punishment of 14 years in not enough for the crime committed by accused as it is heinous crime and the remission of such accused can set a bad effect on the society. 9) As per the meaning of appropriate government it clearly means that the place of imprisonment and commission of the crime is not relevant the trial of case is relevant for the remission of the accused person. 10) The appropriate government has power to remit the punishment accused only if case is tried in that particular state. The appropriate government cannot grant remission if the case is tried in another state under the equivalent. 11) Normally the case is tried in the same state where the offence is committed but in some situation the case is tried in the other court equivalent to it. In this situation question arise which government is appropriate.in this case of remission khelrashtra government is appropriate case is tried is state of Khelrashtra. 12) As the state of Gonda has no power remit the punishment of the accused. The state of Gonda has remitted the punishment. It has remitted the case with the interference of the political leader. The political interference leads to remission of the accused. The Governor of the Gonda state as to misuse his power. AGNEL SCHOOL OF LAW, 2ND NATIONAL LEVEL MOOT COURT COMPETITION- 2024 MEMORIAL ON BEHALF OF PETITIONER 13) The Governor’s power is given under article 161 of the constitution of Indus. the Governor should use his power for the fair justice. The Governor has wrongfully used his power. The Governors cannot give the remission because the case is not tried in his jurisdiction as the case is tried in khelrashtra state the Governor of the same state should grant the remission. 14)The governor cannot exercise the power himself without being advice by the government. There may be various reason or the transferring of a trial from a competent court within the territorial jurisdiction to a court of an equivalent jurisdiction in another state, as has in the instant case but what is certain is that the transfer of the trail to a court in another state would be a relevant consideration while considering as to which state has the competency to pass and order to remission. Thus, the definition of appropriate government in subsection of section 432 clearly indicates that the government of the state within which the offender is imprisonment, is the appropriate government to pass and order of remission. AGNEL SCHOOL OF LAW, 2ND NATIONAL LEVEL MOOT COURT COMPETITION- 2024 MEMORIAL ON BEHALF OF PETITIONER Executive is not only to policy of remission in constitution or provision of CrPC but also by overarching spirit of the constitution that seeks to promote the upliftment of women, children and minorities and to protect these group from further vulnerability and marginalization. That policies and action of the state must be guided by this vision. That accordance with above principles of congratulations grants of remission under such crimes against women and vulnerable is not permissible under section 376and 354 of the IPC. Factory like opinion of presiding judge, public interest, potential of recidivism, impact a victim and on society and nature of crime has not been taken into consideration by state while granting remission which makes this remission discriminatory and unlawful. E.P. Royappa V. State of Tamil Nadu,1974 AIR 555 Dhanjoy Chaterjee vs State of West Bengal 11.01.1994 Laxman Naskar V. State of West Bengal (2000) AGNEL SCHOOL OF LAW, 2ND NATIONAL LEVEL MOOT COURT COMPETITION- 2024 MEMORIAL ON BEHALF OF PETITIONER 5) Whether victim has right to challenge the decision of the of the appropriate Govt. in view power exercise in policy decision which is enshrined by the constitution? 1)The victim has right to challenge the decision. 2) The right to the victim is given under article 32 given by constitution of indus challenge decision of the appropriate government. 3)Article 32 of the constitution of Indus use the right to every citizen to sit constitution remedy from the supreme court when they have been deprived of the year fundamental right the apex court is vested with the power to issue directive of mended to insure to implementation of any of the right enshrined in the constitution as it is acknowledging the protector and granter a fundamental right thus power for such enforcement has been vested under Article 32 of the constitution. 4)it is violation of fundamental rights of petitioner under article 14 and article 21. Article 14 of the constitution - The state shall not deny to any person equality before law or the equal protection of the laws within the territorial indus. Article14 equality before the law- The state shall not deny to any person equality before the law or the equal protection of the law within the territory of Indus These parts of the article indicate that all are to be treated equally in the eyes of the law. these is the negative concept as it implies the absence of any privilege in favour of any person. These is a substantive part of the article. 2) Equal protection of the laws-This part means that the same law will be applied to all the people equally across the society. This is a positive concept as it expects a positive action from the state. This is procedural part of Article 14 Article 21 states that " No person shall be deprived of his life or personal liberty except according to a procedure established by law. Thus Art 21 secure two rights 1) Right to life 2) Right to personal liberty This means that every individual has the right to live, and that their life cannot be taken away except in accordance with the prescribed legal procedures. The right to life encompasses various aspects, including the right to live with dignity to a healthy environment. Art 21 also protect the personal liberty of individual AGNEL SCHOOL OF LAW, 2ND NATIONAL LEVEL MOOT COURT COMPETITION- 2024 MEMORIAL ON BEHALF OF PETITIONER 5) It is against the remission policy of the state. According to remission policy remission is barred for those convicted of rape and murdered. 6) Remission is not permissible in heinous crime. As the accused was convicted of rape and murder. Murder of more than one person including child. Rape of more than one person 7) It is controversial to the provision Sec. 432 of the Crpc. As the remission is given by the Gonda state and as per the Sec. 432 of the Crpc. State of Gonda is not an appropriate govt. As accused is not tried in state of Gonda is not appropriate govt. Sec. 432(7). 8) State of Gonda is not appropriate Govt. to give order of permission. As the case is not tried by the Gonda state and as per Section. 432 of the Crpc. The appropriate Govt. is to remission to the convict is Khelrashtra and not the governing authority of the state of Gonda. Sec. 432(7) In this section and in section 433, the expression “appropriate Government” means, a) In cases where the sentence is for an offence against, or the order referred to in Sub- Section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government. b) in the other, cases the government of the state within which the offender is sentenced or the said order is passed. 9) Interfere of the state of Gonda in the subject matter of remission to the convicts will lead to "Usurpation of power" over the state of Khelrashtra. This baseless decision of the state of Gonda of remission in the favour of the convicts harm the federal system and separation of power of authorities in the written Constitution of Indus. 10) The governing authority of the state of Gonda have approved the subject matter of remission only due to malafide intention and the order is passed in the favour of convicts to protect them. Thus, approving the remission will result in dangerous state of affairs in our democracy and Democratic polity. 11) The subject matter that is accused is very heinous in nature and has very bad adverse effect over the society remitting such predators for pre-mature release will have bad influence over the society. Therefore, the order of remission by the state of Gonda is against the principle of natural Justice. This court held that a crime is not merely an offence committed in relation to an individual but is also an offence against society at large and it is the duty of the state to punish the offender. Prafulla vs State of Orissa Rantanlal vs Prahlad Jat, 2017