CLASS MOOT 2020

BEFORE THE HIGH COURT OF RAJASTHAN

IN THE MATTER OF

Rukesh Das Appellant

Versus

State of Rajasthan & Ors. Respondent

WRIT PETITION (CRL.) NO. 124 /2020

ON SUBMISSION TO THE HON’BLE HIGH COURT OF RAJASTHAN

(Under Article 226 of the Constitution of India)

MEMORIAL ON THE BEHALF OF THE APPELLANTS

TABLE OF CONTENTS
LIST OF ABBREVIATIONS

& And

¶ Paragraph
 AIR All India Reporter

Anr. Another

Cr. LJ Criminal Law Journal

CRC Convention of the Rights of the Child

F.I.R First Information Report

Govt. Government

Hon‟ble Honourable

i.e. That is

JJ Juvenile Justice

LR Law Report

Ltd. Limited

N.C.T National Capital Territory

 INDEX OF AUTHORITIES

STATUTES

 The Constitution of India

 The Indian Penal Code
 The Indian Evidence Act
 The Information Technology Act
 The Protection of Children from Sexual Offences (POCSO) Act, 2012

CASES

 Durayoo vs State of Uttar Pradesh AIR 1961 SC 1457

 State of Orissa vs Ram Chandra Dev AIR 1964 SC 685
 S.M.D Kiran Pasha v. Government of Andhra Pradesh (1990)1 SCC 328
 Haryana State Industrial Corporation v. Cork Mfg. Co. , AIR 2008 SC 56.
 Pawan Kumar v. State of Haryana, (2003) 11 SCC 241.
 Sripur Paper Mills v. Commissioner of Wealth Tax, (1970) AIR 1520.
 A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani,
AIR 1961 SC 1506
 Whirlpool Corporation v. Registrar of Trade Marks, AIR 1999 SC 22.
 Onkar Lal Bajaj v. Union of India, (2003) 2 SCC 673.
 Mohan Ambadas Meshram vs State Of Maharashtra
 V. D. Jinghan v State of Uttar Pradesh, AIR 1966 SC 1762.
 Meenakshi Mills Ltd v AV Vishwanatha Shastri (1955) 1 SCR 787.
 R v Oakes, [1986] 1 SCR 103.
 Rubinder Singh v Union of India, AIR 1983 SC 65
 Yogesh Maral v State of Maharashtra, 2016 (1) BomCR (Cri) 474.
 State of Maharashtra v Dilip Gajbhare, Special Case No 35/2014 (Bombay High Court).
 State of Punjab v Baldev Singh, (1999) 6 SCC 172.
 Zahira Habibbullah Sheikh v State of Gujarat, (2006) 3 SCC 374.
  B.B Nanda and R.K. Tiwari, Forensic Science in India, A Vision for Twenty First
Century213 (Select Publisher, New Delhi, 2001)
 State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808

BOOKS AND ARTICLES

 C. Kashyap, B.N. Patel, The constitution of India and International Law,19( 3rd ed., 2005)
 M.P. Jain, Indian Constitutional Law, (7th Ed., 2014)
 “Polygraph Test And its Validity in India”, available at www.indiakanoon.com(visited on
date 11-03-2013).
 David Hamer, The Presumption of Innocence and Reverse Burdens: A Balancing Act, 66
Cambridge LJ 142 (2007) p. 147.
 National Crime Record Bureau, Crime in India 2013 Statistics, available at
http://ncrb.nic.in/StatPublications/CII/CII2013/Statistics-2013.pdf

LEGAL DATABASE

 Manupatra
 SCC Online
 Indian Kanoon
 Drawn and filed by the Counsel for the Appellants

1. Whether the writ under Article 226 is maintainable or not?

The said writ petition should be maintainable because the fundamental rights of the
constitutional remedies guaranteed under part III where by any citizen can approach any
competent High Court for enforcement of his fundamental rights. Article 226 of the constitution
guarantees to a citizen, a fundamental right to constitutional remedies under part III whereby any
person can approach the High Court of State to enforce rights guaranteed to him under Article
226. In discharging the duties assigned to protect fundamental rights the Supreme Court in the
words of Patanjali Sastri J. has to play a role of a qui vie. It has been held in Durayoo vs State of
Uttar Pradesh1, the Supreme Court took it as its solemnly duty to protect the fundamental rights
zealously and vigilantly.

The Writ Petition made in furtherance to the Honorable High Court due to the Special Court’s
inability to decide a question of law is maintainable under Article 226 of the Constitution of
India as: firstly, the jurisdiction of High Court can always be invoked; secondly, the Hon’ble HC
is well within its rights to accept the writ petition on application from the petitioners and thirdly,
existence of Alternative Remedy is no bar to file petition.

‘Article 226 Power of High Courts to issue certain writs2

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territories in relation to which it exercise jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and
certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for
any other purpose

1
Durayoo vs State of Uttar Pradesh AIR 1961 SC 1457
2
Article 226 of the Constitution of India
(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in relation
to the territories within which the cause of action, wholly or in part, arises for the exercise of
such power, notwithstanding that the seat of such Government or authority or the residence of
such person is not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or stay or in
any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ),
without
(a) furnishing to such party copies of such petition and all documents in support of the plea for
such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for
the vacation of such order and furnishes a copy of such application to the party in whose favour
such order has been made or the counsel of such party, the High Court shall dispose of the
application within a period of two weeks from the date on which it is received or from the date
on which the copy of such application is so furnished, whichever is later, or where the High
Court is closed on the last day of that period, before the expiry of the next day afterwards on
which the High Court is open; and if the application is not so disposed of, the interim order
shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand
vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the power
conferred on the Supreme court by clause ( 2 ) of Article 32.’

Article 226 does not specify the person who can approach the court under it. But as this article
provides a public law remedy similar to Article 32, similar provisions of locus standi apply to it
as to Article 32. Ordinarily a person whose legal rights or other legally protected interests are
adversely affected should approach the court for relief State of Orissa vs Ram Chandra Dev3.
The petitioner need not wait till the infraction of his right; he can also approach the court against
imminent threat of such infraction S.M.D Kiran Pasha v. Government of Andhra Pradesh.4

3
State of Orissa vs Ram Chandra Dev AIR 1964 SC 685
4
S.M.D Kiran Pasha v. Government of Andhra Pradesh (1990)1 SCC 328
 1.1 Jurisdiction of HC under Article 226 can always be invoked.

It is humbly submitted before this Hon’ble Court that whenever a question of law of general
public importance arises the jurisdiction can be invoked. The jurisdiction conferred under Art.
226 on the High Court are corrective one and not a restrictive one.5 A duty is enjoined upon the
High Court to exercise its power by setting right the illegality in the judgments is well-settled
that illegality must not be allowed to be perpetrated and failure by the High Court to interfere
with the same would amount to allowing the illegality to be perpetuated.6 It has been held in
plethora of cases that when the question of law of general public importance arises, the
jurisdiction of High Court can be invoked. In the present case, the issue involves matter of
General Public Importance and hence, entitled to be maintainable.

1.2 The Hon’ble HC is well within rights to accept the writ petition on application from the
appellant

It is humbly submitted before the hon’ble High Court that the writ petition from the appellant is
very well within the jurisdiction of High Court and that the High Court with its power to exercise
justice and equity.

1.3 The existence of an alternative remedy is no bar to file petition

It is humbly submitted before the Hon’ble Court that the remedy under Article 226 of the
Constitution is discretionary remedy.7 The Court is vested with power to entertain the petition
where there occurs gross miscarriage of justice and effective remedy is not available. This rule of
exhaustion of the statutory remedy is not rigid but somewhat flexible and it is primarily a matter
of the discretion of the writ court.8 Reliance is placed upon the decision in the case of
Whirlpool’s Corp. v. Registrar of Trade Marks9, in which it was held by the Apex Court that the
jurisdiction of the High Court in entertaining a writ petition under article 226 of the Constitution
would not be affected although there exists alternative statutory remedies, in which it was held
by the Apex Court that the jurisdiction of the High Court in entertaining a writ petition under

5
Haryana State Industrial Corporation v. Cork Mfg. Co. , AIR 2008 SC 56.
6
Pawan Kumar v. State of Haryana, (2003) 11 SCC 241.
7
Sripur Paper Mills v. Commissioner of Wealth Tax, (1970) AIR 1520.
8
A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani, AIR 1961 SC 1506
9
Whirlpool Corporation v. Registrar of Trade Marks, AIR 1999 SC 22.
article 226 of the Constitution would not be affected although there exists alternative statutory
remedies. Lastly, it is submitted that a writ petition is maintainable when the lis involves a public
law character and when the forum chosen by the parties would not be in apposition to grant
appropriate relief.10 Question as to when discretionary jurisdiction is to be exercised or refused
has to be determined having regard to the facts and circumstances of each case. No hard and fast
rule can be laid down in this regard.11

Hence, in the instant case, the writ filed by the appellant under Article 226 of the Constitution of
India is very well maintainable and permissible.

10
M.P. Jain, Indian Constitutional Law, 415(7th Ed., 2014).
11
Onkar Lal Bajaj v. Union of India, (2003) 2 SCC 673.
 2. Whether Section 29 and Section 30 of the POCSO Act, 2012 is against the provisions
of the Constitution of India?

It is humbly submitted before the Hon’ble High Court that the Section 29 and Section 30 of the
POCSO Act is against the Constitutional provisions. The contention to further prove the above
statement has been detailed below.

Section 29 of The Protection of Children from Sexual Offences, 2012 states,

“Presumption as to certain offences - Where a person is prosecuted for committing or abetting

or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special
Court shall presume, that such person has committed or abetted or attempted to commit the
offence, as the case may be, unless the contrary is proved.”

Section 30 of the Protection of Children from Sexual Offences, 2012 states

“Presumption of culpable mental state - (1) In any prosecution for any offence under this Act,
which requires a culpable mental state on the part of the accused, the Special Court shall
presume the existence of such mental state, but it shall be a defence for the accused to prove the
fact that he had no such mental state with respect to the act charged as an offence in that
prosecution.”

As detailed from the original act itself and as above stated, the POCSO presumes certain
offences wherein the special court shall presume that the person is guilty unless proved otherwise
which is a sheer contradiction of the natural justice because otherwise as per burden of proof
under Section 101 of the Indian Evidence Act, 1872 it is the person who is asserting a fact needs
to prove the same. In this case, the minor and her family are asserting the fact and hence, they
should be asked to prove the same. But as per POCSO it is held otherwise wherein the accused
(in this case the music instructor) will be assumed to have committed the said offence against the
minor until he proves his innocence which is absolutely against Article 14 of the Constitution
which talks about equality.

(2) For the purposes of this section, a fact is said to be proved only when the Special Court
believes it to exist beyond reasonable doubt and not merely when its existence is established by a
preponderance of probability.”
The absence of proof of such foundational facts would have the result of presumption under
Section 29 of the POCSO Act, not being triggered at all in the facts of the present case.
Although, Section 29 of the POCSO Act raises a presumption and the accused is required to
prove contrary, but no presumption can be absolute. The presumption would arise only upon the
prosecution proving the basic foundational facts of its case before the Court beyond reasonable
doubts. Any other interpretation would do violence to the fundamental principle enshrined
in Article 21 of the Constitution of India that no person should be deprived of his liberty without
procedure established by law. In any case, the nature of presumption in Section 29 of the POCSO
Act would be rebuttable on the touchstone of preponderance of probabilities.12

Both the Sections 29 and 30 of the Act should be held to be ultra vires of the Constitution as they
violate the fundamental rights of the accused and principles of procedural fairness under the
common law where the burden of proof lies on the prosecution to prove the case against the
accused beyond any reasonable doubt.13

The pair of presumptions lead to the commencement of proceedings against the accused with a
presumption of guilt. Therefore, it is the prosecution which should prove the concurrent presence
of mens rea and actus reus beyond a reasonable doubt.

[A] The sections violate the ‘Right to Equality’ as envisaged under Article 14 of the
Constitution
Right to equality is one of the most basic fundamental rights as provided in the Constitution and
it encompasses both- Right to equality and equality of opportunity. The equals have to be treated
equally not only under substantive laws but also procedural laws.14 The differentiation can only
be made on the basis of intelligible differentia and the differentiation should have a nexus with
the object of the legislation. There is no rational connection between ‘object and restriction’ as
determined by the statute. The object of the Statute is ‘protect children from sexual abuse and
sexual exploitation’ and not increase the conviction rate even if it is erroneous. It might be for the

12
Mohan Ambadas Meshram vs State Of Maharashtra
13
V. D. Jinghan v State of Uttar Pradesh, AIR 1966 SC 1762.
14
Meenakshi Mills Ltd v AV Vishwanatha Shastri (1955) 1 SCR 787.
best interest of the child that such provisions have a statutory recognition but the rights of the
accused are equally important and have to be balanced against the rights of the victim.
Article 14 strikes at arbitrariness and unreasonable laws and therefore the set of presumptions
are violative of the same.
In R v Oakes,15 the Court developed a two-fold test to assess the reasonableness in classification:

1. The object of the legislation and classification should have a rational nexus.
2. Test of proportionality where there should be rationality, minimum impairment of the
right of freedom and proportionality with regards to means and effect.

Even if the object of the statue is to secure justice and peace in the society or to secure interests
of the public at large, the Rule of Law demands that no person can be subjected to harsh or
discriminatory treatment.16

Even if the classification is valid in the interests of the public, the effect on the innocent accused
should be minimal and should not cause grave injustice to the accused.

The result-oriented approach of the Legislature in this context is arbitrary and against the spirit
of Article 14. The Legislature cannot over include a particular class of accused without attaching
any precondition even if the society considers that offence greater than others. This is
incompatible with the principles of punishment and will lead to arbitrary decisions. The burden
of proof in criminal cases is always beyond a reasonable doubt. Such presumption rules out the
burden on the prosecution in the very first instance and increases the burden on the accused
arbitrarily.

[B] The sections violate the ‘Right to life and personal liberty’ under Article 21 of the
Constitution
The presumptions not only violate the fair procedure established by law but also violate the
Right to a fair trial. Article 14 pervades Article 21 and something which is not a valid procedure
under Article 14 will automatically not be a fair procedure under Article 21. It is a settled law
that the procedure established by law that procedure, as interpreted by the Hon’ble Supreme
Court, is in context of due process of law which includes the presumption of innocence as an
15
R v Oakes, [1986] 1 SCR 103.
16
Rubinder Singh v Union of India, AIR 1983 SC 65
integral part of it. The procedure established by law which can be used to curtail the freedom
under this section has to be fair, just and reasonable, and non-arbitrary.

i. Sections 29 and 30 of the POCSO Act are not in consonance with the
‘procedure established by law’.
Section 29 states that the Court ‘shall’ presume that the offences under section 3, 5, 7 and 9 have
been committed by the accused. The word ‘shall’ as opposed to ‘may’ puts an obligation on the
Courts to presume that the accused has in fact committed the offence.
In Yogesh Maral v State of Maharashtra, the Court stated that the ambit of Section 29 is quite
wide and due care and precaution shall be used before applying it to any of the cases hinted
towards its unconstitutionality. The Court further stated that a plain reading of Section 29 would
suggest that it is beyond the normally accepted principles of criminal jurisprudence.17
In State of Maharashtra v Dilip Gajbhare, the High Court of Bombay did not acquit the accused
stating that discharging burden of proof based on a mere preponderance of possibilities is not
sufficient and accused has to discharge his proof beyond a reasonable doubt.18

ii. The possibility of mistaken conviction and its consequences.

A mistaken conviction would unnecessarily censure, punish and stigmatize the defendant and his
rights.19 While there might be numerous possibilities of different incidents that can take place
(positive presumptions); it is always difficult to prove the negative presumptions of non-
happening of any event. Punishment for aggravated penetrative sexual assault is rigorous
imprisonment for a minimum period of 10 years which can extend up to life imprisonment and
fine.20 As the gravamen of the offence increases, the burden of proof increases proportionally.
The right to a fair trial is an inherent right of the accused and its denial causes an injustice to the
accused as to the victim.21 Presumption of innocence is one of the basic principles of the ‘Right
to a fair trial’ which ensures that the accused is not treated with biasness or any prejudice.22

17
Yogesh Maral v State of Maharashtra, 2016 (1) BomCR (Cri) 474.
18
State of Maharashtra v Dilip Gajbhare, Special Case No 35/2014 (Bombay High Court).
19
David Hamer, The Presumption of Innocence and Reverse Burdens: A Balancing Act, 66 Cambridge LJ 142
(2007) p. 147.
20
POCSO Act 2012, § 5 and § 6.
21
State of Punjab v Baldev Singh, (1999) 6 SCC 172.
22
Zahira Habibbullah Sheikh v State of Gujarat, (2006) 3 SCC 374.
The pair of presumptions by not following this basic tenet of fair trial and by making it
incumbent upon the accused to rebut the presumptions with such high standards of proof leads to
a violation of this right.

3. WHETHER THE SPECIAL COURT’S DECISION OF DENYING

POLYGRAPH/BRAIN MAPPING TEST IS ARBITRARY AND AGAINST LAW?

It is submitted before the Hon’ble High Court that the Special Court’s decision of denying
polygraph test is against law and arbitrary.

The society owes a commitment to the people that the potential and strength of the states is not
abused in the dispensation of justice and that the concept of human right is upheld and nurtured
all the time. To preserve the common rights, the basic tool human being has devised is the police
set-up. Death, rape and torture in police custody are common, Factual reports have embarrassed
several State Government and their police personale which employed third degree methods in the
interrogation of the suspected people detained to disclose the truth or their plans. The third
degree method will never put an end to the crime as the criminal get hardened and wish to take
revenge and cause embarrassment to the establishment. Interrogation of the suspected criminals
using third degree methods often results into loss of fear and respect for the authority of the
State. The law enforcement agency in the country will have to react effectively by scientific
interrogation of the victim and the accused and try to get as much evidence as possible to
establish the charge. This is to be done by resorting to forensic polygraphy technique. Forensic
Polygraphy is the technique to check deception of truth by a subject juxtaposed with the veracity
of his statement.23

In today’s World, the scenario of impartiality, the conventional sources of proof, eyewitness
description, confession have gone much twisted. The trial procedure is very long so it is difficult
to keep the witness from turning hostile. At present the criminal are taking in to consideration

23
B.B Nanda and R.K. Tiwari, Forensic Science in India, A Vision for Twenty First Century213 (Select Publisher, New
Delhi, 2001)
new techniques in the commission of the crime .So there is a dire need that the prosecution
agency rely on something more authentic, more actual and more creative in terms of convictions
without the police having to resort to the third degree traditional method that not only violates
fundamental human rights but also fail to produce the positive result results most of the time.
Recent times have witnessed an epidemic in the use of contemporary scientific techniques such
as the Lie Detector, Brain Mapping, and Narco-Analysis, in the criminal investigation.24

The main legal provisions which governs the expert evidence (Lie Detector test), are in Indian
Constitution, Code of Criminal Procedure, Indian Evidence Act. In Indian Constitution there are
various provisions which are related with the protection of the accused person .In the
Constitution of India, the provision of life, liberty and freedom has been given under Article 20
and 21.

There have been instances where the Court has stated that polygraph test without the person’s
consent is against law. In the case of State of Bombay v. Kathi kalu Oghad25, the Hon’ble
Supreme Court observed that conducting the Polygraph by the police without the consent of
accused person is clear violation of article 20(3) of the Indian Constitution. The right against
forced self-incrimination is enshrined in Article 20(3) of the Indian Constitution as well as in the
Criminal Procedure Code. In this case the Bombay High Court had to decide whether compelling
the accused person to undergo this test would violate his right to silence and compel him to
provide evidence against himself. In this case Palshikar j. held that the right against self-
incrimination applies only to court proceeding and not to police interrogation.

Hence, in this case the accused himself is ready to undergo the polygraph test and hence he
should be allowed to undergo the same.

24
“Polygraph Test And its Validity in India”, available at www.indiakanoon.com(visited on date 11-03-2013).
25
State of Bombay v. Kathi kalu Oghad AIR 1961 SC 1808