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TEAM CODE -
BEFORE THEHON’BLE SESSION COURT OF HIRONI DISTRICT
RESPONDENT AND PETITIONER
STATE AND ANR.
V.
RAJVIR AND ANR.
APPLICANT AND RESPONDENT
MEMORIAL ON BEHALF OF STATE AND PETITIONER
Most Respectfully Respectfully Submitted To The The HON’BLE SESSION SESSION COURT OF HIRONI HIRONI DISTRICT
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TABLE OF CONTENTS
1. INDEX OF AUTHORITIES............................................ .................................................................. ............................................ ................................III ..........III
2. STATEMENT OF JURISDICTION........................................... ................................................................. ............................................. .......................VII VII
3. STATEMENT OF FACTS….............................................. ….................................................................... ...........................................V .....................VIII III
4. ISSUES………………................ ………………...................................... ............................................ ............................................ ........................................XI ..................XI
5. SUMMARY OF ARGUMENTS............................................ .................................................................. ............................................ ........................XII ..XII
6. ARGUMENTS ......................................... ............................................................... ............................................ ............................................ .........................XIV ...XIV
I.W A NTICIPATORY B AIL S A LLOWED T O T ACCCUSED? ........14 HETHER T HE A NTICIPATORY B HOULD B E A HE A II. W HETHER T HE O RDER O F A PPLICATION PPLICATION N O. O. 111-112/2015 D ISMISSING P ETITION 420/2014 A ND 787/2014 W AS T T I L AW ? ................21 ENABLE I N L III.W HETHER T HERE I S S UFFICIENT UFFICIENT E VIDENCE VIDENCE T O A DD M R. S AKSHAM T ANDON AS A N ACCUSED U 376/109 O F T T I P , 1860?…....…...30 1860?…....…...30 NDER S ECTION 376/109 HE I NDIAN P ENAL C ODE ODE …………………………………………………………............................XXXV 7. PRAYER …………………………………………………………............................XXXV
MEMORIAL ON BEHALF OF STATE AND PETITIONER 2
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INDEX OF AUTHORITIES
I. CASE LAWS CITED A. Supreme Court Cases Cases 1. Badshah v Sou. Urmila Badshah Godse & Anr (Criminal Miscellaneous Petition
No.19530/2013 in Special Leave Petition (CRL.) No.8596/2013 No.8596/2013 ) 2. Balchand Jain v State of MP (1976) 4 SCC 572 3. Balram Prasad Agarwal v State of Bihar (1997) 9 SCC 338 4. Brijlal v Premchand AIR 1989 SC 1661 5. Chand Begum v Hyder Baig (1972) Cr LJ 1270 6. Faguna Kanta Nath v State of Assam AIR 1959 SC 673S 7. Gurbaksh Singh v State of Punjab AIR 1980 SC 1632 8. Municipal Corporation of Delhi v Ram Kishen Rohtagi 1983 CrLJ 159 (SC) 9. Nimmagadda Prasad v Central Bureau of Investigation (2013) 7 SCC 466 10. Poker Ram v State AIR 1977 SC 366 11. Prahlad Singh Bhati v NCT Delhi Del hi (2001) 4 SCC 280 12. Ramesh Chander Kaushal vs Veena Kaushal & Ors1978 AIR 1807 13. Salauddin Abdulsamad Shaikh v State of Maharashtra (1996) 1 SCC 667 14. Sanju v State of Kerela AIR 2001 SC 175 15. Sanjay Chandra v Central Bureau of Investigation (2012) 1 SCC 40 16. Savitri Agarwal &Ors v State of Maharashtra &Anr2009 CrLJ 4290 17. Sharad Subramanyan v Soumi Mazumdar (2006) 8 SCC 91 18. Siddharam Satlingappa Mhetre v State of Maharashtra and others2011 AIR(SC) 312 19. Sri Ram v State of UP AIR 1975 SC 175 20. State of AP v Patnam AIR 2005 SC 746 21. State of Maharashtra &Anr v Mohd. Sajid Husain (2008) 1 SCC 213 22. State of MP v Ram Kishna Balothia 1995 SCC (Cri) 439 23. State of U.P. Vs. Munesh AIR 2013 SC 147 24. Trilok Chand Jain v State of Delhi AIR 1977 SC 666 MEMORIAL ON BEHALF OF STATE AND PETITIONER 3
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25. Tulshidas Kanolkar v State of Goa 2004 SCC (Cri) p. 44 B. High Court Cases
26. Abdul Salim v Najima Begum 1980 CrLJ 232 (All) 27. Alladeen v State 1977 CrLR 669 28. Amiruddin Salebhoy AIR 1923 Bom 29. Anupam v State Of Haryana on 31 July 2012 Punjab-Haryana High Court 30. Aruna Chadha vs State Of Delhi on 25 July, 2013 CRL.REV.P. 305/2013 31. Asha Anil Deshmukh v Anil Mahadeorao Deshmukh 1996 CriLJ 2751, II (1996) DMC 325, 1996 (2) MhLj 471 32. Atanu Ghose v State (NCT of Delhi) 2001 Cri LJ 2445 at p. 2447 (Del) 33. Baby john v State AIR 1953 TC 251 34. Bakubhai v Gangaram (1988) 1 Ker LT 413 35. Basanta Kumari v Sarat Kumar 1982 Cri LJ 485, 486 (Ori HC) 36. Bhagirathi Mahapatra v State 1975 Cri LJ 1681 at p. 1683 (Ori) 37. Bhagirathi v State 1971 Cr LJ 1681 38. Bharat Inder Singh Chahal v State of Punjab 2007 Cri LJ 2290 at p. 4495 (P&H) 39. Bhikaji v Maneckji(1907) 9 Bom LR 359 40. Bilawati Pegu v PhukanPegu 1998 Cr LJ NOC 30 (Gau) 41. Bimaladak v State 1997 Cal Cri LR 72 42. Chandra Mohan v State of Kerala 1977 Ker LT 791 43. Dhone Ram v Ram Die AIR 1955 All 320 44. Digendra Sarkar and Ors. v Unknown 1982 CriLJ 2197 45. Duli Chand v State of Rajasthan 1993 CrLJ 827 (Raj). 46. Gopi Shanker v State of Rajasthan AIR 1967 Raj 159 47. InduBala v State of Delhi 1991 Cri LJ 1774 (Del HC) 48. Jagannath v State of Maharashtra1981 Cr LJ. 1808 (Bom.) 49. Kandasami Moopan v Angammal AIR 1960 Mad 348 50. Kasthuri v Ramasamy 1979 CrLJ 74 l (Mad) 51. Kishwant Singh v State of Bihar 1993 CrLJ 1700 52. Krishna Kaur v Kartar Singh (1988) Cr LJ 717 (J&K) 53. Lal Changmunga v Lianpari on 7 January, 1988< http://indiankanoon.org/doc/823353/>
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54. Lilaram L. Revani v R.D. Gandhi 1998 Cri LJ 14 at p. 15 (Guj) 55. Madan Lal v Suman AIR 2002 P&H 321 56. Mahanthagouda v State of Karnataka 1978 Cri LJ 1045 (Kant HC) 57. Manoj Agrawal v State of Chhattisgarh2003 Cri LJ 3519 at pp. 3521-22 (Chhattis) 58. Manorama Swain v Giridhari Swain, 1993 Cr LJ 2595 (Ori) 59. Margoobul Hasan v State of UP 1988 CrLJ 1467 60. Md. Abdul Sattar 1986 (1) Crimes 251 (Gau) 61. Md. Abdul Sattar v State of Assam AIR 2009(NOC) 212 (Gau) 62. Mithilesh Kumari v Bindawasni (1990) Cr LJ 830 63. Mohan Wahi v State (CBI) New Delhi 1982 CrLJ 2040 (Del) 64. Mohd. Zakir Hussain v State of Haryana 2004 Cri LJ 469 at p. 473 (P&H) 65. Prem Narain v State AIR 1957 All 177 66. Rachita Rout v Basanta Kumar Rout 1987 CrLJ 655 (ori) 67. Radharani Panda v Arnapurna 1994 (3) Crimes 119 (ori) 68. Ram Chandra Misra v State of UP 2003 94 RD344 69. Rao Harnarain Singh Sheoji Singh v State AIR 1958 Punj 123 70. Samabhai v State of Gujarat 1977 Cr.LJ 1524 (Guj) 71. Sambhu Das v State of Tripura 1988 (1) Crimes 634 72. Satish Rakesh v State of Jharkhand 2002 CrLJ NOC 290 73. Sheela v Subash, 1993 Cr LJ 848 (Bom) 74. State of UP v Munesh AIR 2013 SC 147 75. State of Himachal Pradesh v Mango Ram AIR 2000 SC 2798 76. State of Karnataka v Krishnappa 2004 CrLJ 2175 (2177) (Kant). 77. State of Maharashtra v Satyakumar Kamalksihore Nashine 2008 (1) AIR Bom R 509 78. Subash Chandra Bebarta v State of Orissa1974 CRI LJ 217 (ORI) 79. Suresh v State 1978 Cr LJ 677 80. Tarachand v State of HP 2000 Cr LJ 3764 (HP) 81. Tarak Shaw v Minto Shaw1984 Cri LJ 206 (Cal HC) 82. Vipin Nandan Varrier v State Of Karnataka on 28 J anuary, 2015 C. International Cases
83. Orford v Orford (1921) 47 OLR 15 (Canada) 84. Plaintiff-Appellee, v Curtis Alan Wharton526 f.3d 320 MEMORIAL ON BEHALF OF STATE AND PETITIONER 5
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85. R v Camplin(1845) 1 Cox 220 86. Towell (1854) 2 C&K 309 87. Subramaniam v Public Prosecutor (1956) 1 WLR 965
II.BOOKS REFERRED
1.
S.D. BASU, Law Of Evidence, Allahabad Law Agency (1 st ed. 2001)
2.
Halsburt’ Laws Of India, Criminal Procedure-I&II, Volume 32 & 33, 5(1)and 5(2)
3.
SARKAR, Criminal Procedure Code, Wadhwa and Co. (8 th ed. 2005)
4.
DR. N. V. PARANJAPE, Code of Criminal Procedure, Central Law Agency (1 sted
2005)
5.
D.D.BASU, Criminal Procedure Code, (4th ed. 2010)
III.
1.
DICTIONARIES REFERRED
P. RamanathaAiyar’s Concise Law Dictionary (4th ed. 2012) New Delhi: Lexis Nexis Butterworths Wadhwa
2.
Wharton’s Law Lexison( 15th ed. 2011) New Delhi: Universal Law Publishing Co. Pvt. Ltd.
IV.
STATUTES REFERRED
1.
THE CODE OF CRIMINAL PROCEDURE, 1973
2.
THE INDIAN PENAL CODE, 1860
3.
THE INDIAN EVIDENCE ACT, 1872
4.
PROTECTION OF WOMEN FROM DOVESTIC VIOLENCE ACT, 2005
VI.
WEBSITES REFERRED
1. www.westlawindia.com 2. www.manupatra.com 3. www.the-laws.com 4. www.scconline.com 5. www.jcconline.com
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STATEMENT OF JURISDICTION
As regards Application No. 108/2015:-
Relevant provision of s. 438 of the Code of Criminal Procedure, 1973 reads as:- Direction for grant of bail to person apprehending arrest. (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he ma y apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. As regards Revision Petition No. 6/2015 And Revision Petition No. 7/2015
s. 399 of the Code of Criminal Procedure, 1973:- Sessions Judge's powers of revision:(1) In the case of any proceeding the record of which has been called for by himself, the Sessions judge may exercise all or any of the powers which may be exercised by the High Court under sub- section (1) of section 401. (2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub- section (1), the provisions of sub- sections (2), (3), (4) and (5) of section 401 shall, so far as may be, apply to such proceeding and references in the said sub- sections to the High Court shall be construed as references to the Sessions Judge. (3) Where any application for revision is made by or on behalf of a person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by Way of revision at the instance of such person shall be entertained by the High Court or any other Court.
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STATEMENT OF FACTS
I. Background of Rajvir and Avantika
Rajvir and Avantika belonged to a small city called Nilatan in State of Chalmiha in Dania. They got married in December, 2004. Their marriage was a love-cum-arranged marriage. Rajvir and Avantika shifted to Heldi in August, 2005. Both got an opportunity to work at the office of an upcoming lawyer, Mr. Aafreen Sethia (now a renowned lawyer for criminal law). Mr. Aafreen Sethia
had a sprawling office with many junior lawyers working under him including Mr.
Saksham Tandon, assisting Mr. Aafreen Sethia
in various property, criminal, matrimonial
disputes etc. Rajvir got to work as a Court-Clerk in Mr. Aafreen Sethia’s office and was assigned to Mr. Saksham Tandon’s team. Avantika got the job of managing the office of Mr. Aafreen Sethia. II. Birth of Saira
However, in September, 2007, when Avantika became pregnant, she had to leave her job at Mr. Aafreen Sethia’s office as she could not afford to put in the number of hours that were required by her job. Mr. Aafreen Sethia accepted her resignation and also offered her two months’ salary on the condition that she will train her successor in his office, as his work could not have stopped. Draupadi, trained Ishani, who was to succeed Avantika in the month of December, 2007 before leaving Mr. Aafreen Sethia’s office. Rajvir and Avantika were blessed with a girl child named Saira in May, 2008. Rajvir continued to work as a Court-Clerk, while Avantika stayed home to take care of their daughter Saira. When Saira started to go to school in 2011, Avantika joined the clinic of Dr. Sunil Wilfred as receptionist-cum-manager to avoid sitting idle at home. Often in her free time Avantika used to visit the office of Mr. Aafreen Sethia
to meet and
interact with the staff at Mr. Aafreen Sethia’s office. Over the period, Avantika and Ishani had become very good friends.
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III. Matrimonial Discord
Sometime in 2012, exchange of heated arguments between Rajvir and Avantika over responsibility of Saira and their respective work commitments. This exchange of heated arguments was sometimes also followed by physical abuse. Eventually, even petty disagreements resulted into arguments between the two of them and the relationship got strained to the extent of breakdown of marriage. Avantika, eventually took the step of leaving her matrimonial home and shifted to a separate accommodation with Saira, in February, 2013. When this information reached the ears of Mr. Aafreen Sethia, he offered to mediate. But, his attempts did not result in any fruitful outcome for Rajvir and Avantika.
IV Judicial Proceedings
Avantika filed a petition (Petition No. 420/2014) in the Court of Metropolitan Magistrate (Hironi District) seeking maintenance for herself and her daughter Saira under Section 125 of Code of Criminal Procedure along with application for interim maintenance (Application No. 786/2014) and an application (Application No. 787/2014) under Section 12 of the Protection of Women from Domestic Violence Act, 2005 in the Court of Metropolitan Magistrate (Hironi District) for the same relief. The Court of Metropolitan Magistrate (Hironi District) issued notice to Rajvir on 21st January 2014.
Upon receiving notice issued by Metropolitan Magistrate (Hironi District) in
Petition No. 420/2014 & Application No. 787/2014, Rajvir filed a petition under Section 9 of the Hindu Marriage Act, 1955 (HMA Petition No. 666/2014) for restitution of conjugal rights before the Family Court (Hironi District) Heldi. V. Reconciliation
On 14th November, 2014 during the proceedings for relief of maintenance pending before the Metropolitan Magistrate (Hironi District), Rajvir proposed to take Avantika and Saira to his house and make an effort to continue his matrimony with her. Avantika agreed to this proposal upon insistence from the Metropolitan Magistrate (Hironi District) to make an effort to reconcile as both of them had given almost 10 years of their lives to this matrimony. During the intervening period, the proceedings before the Metropolitan Magistrate (Hironi District) were kept in abeyance upon submission of Avantika that she would MEMORIAL ON BEHALF OF STATE AND PETITIONER 9
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like to have the case pending for a couple of months until this effort on both of their part works out. VI. After Reconciliation
Though there was no physical abuse, but heated arguments still used to take place. Suddenly, on 28th January, 2015 Rajvir threw Avantika out of his home alleging that she has an illicit relationship with a third person, but did not allow Saira to go with her. On 4th February, 2015 Rajvir filed applications (Application Nos. 111-112/2015) before the Metropolitan Magistrate (Hironi District) to dismiss the petition and application filed by Avantika (Petition No. 420/2014 & Application No. 787/2014) seeking maintenance on the ground that she is living in adultery. This application was accompanied with photographs, which were taken from a video recording, showing Avantika in a compromising position with a third person. Avantika got FIR No. 786/2015 registered at PS Dwarka under Section 376/34 IPC against Ankush and Rajvir alleging that Ankush [who is the person seen with her in the photographs] raped her upon directions of her husband Rajvir in his presence, on 10th February, 2015. She substantiated her allegation stating that Ankush was Rajvir’s friend who often used to visit them and sometimes even stayed at their residence over the night. She further stated that occasionally Rajvir used to take drugs and sometimes even made her take drugs (which he referred to as ‘ice’) to enhance sexual desire and pleasure, and has probably taken advantage of her being in vulnerable state. On 15th February, 2015 apprehending arrest from police, Rajvir filed application (Bail Application No. 108/2015) before the Sessions Court (Hironi District) seeking anticipatory bail stating therein that he will co-operate with police authorities and the video recording from which the images were taken got destroyed in the fire caused at his residence due to short circuit. Notice was issued to State and Avantika in this Bail Application. Pursuant to notice in the Bail Application, police authorities filed status report before the Sessions Court detailing recovery of powdered substance which preliminary results revealed to be a derivative of benzodiazepine and that Ankush was not traceable. VII. Role of Saksham Tandon
When Ishani came to know about what transpired between Rajvir and Avantika, she informed Avantika about an instance when she over-heard a conversation of Rajvir with Mr. Saksham MEMORIAL ON BEHALF OF STATE AND PETITIONER 10
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Tandon in his cabin during which Mr. Saksham Tandon was telling Rajvir about a moot court competition which he had gone to judge and the same revolved around how for the purpose of getting evidence for divorce proceedings a man had got his wife raped by another man and had then taken pictures to malign the character of his wife. Avantika sought for Mr. Saksham Tandon also to be made an accused in FIR No. 786/2015, PS Dwarka for abetment under Section 376/109 IPC. Upon inaction of the police authorities to make Mr. Saksham Tandon an accused for offence registered vide FIR No. 786/2015 PS Dwarka, Avantika filed an application (Application No. 129/2015) under Section 156(3) of Code of Criminal Procedure seeking directions from Metropolitan Magistrate (Hironi District) for Mr. Saksham Tandon to be made an accused in FIR No. 786/2015, PS Dwarka. VIII Order of the Metropolitan Magistrate-
The Metropolitan Magistrate (Hironi District) allowed Application Nos. 111-112/2015, vide order dated 22.02.2015, observing that Avantika has been living in adultery. The Metropolitan Magistrate (Hironi District) dismissed Application No. 129/2015, vide order dated 25.02.2015, observing that there is not enough material to proceed against Mr. Saksham Tandon. Avantika has preferred Revision Petition No. 6/2015 before Sessions Court (Hironi District) challenging order dated 22.02.2015 and Revision Petition No. 7/2015 before Sessions Court (Hironi District) challenging order dated 25.02.2015. Avantika also filed objections / reply to the Bail Application No. 108/2015 stating therein that case registered vide FIR No. 786/2015 PS Dwarka warrants custodial investigation as the photographs supplied by Rajvir are images taken from video recording and the said video recording has not been brought forthwith by Rajvir. Upon noting that Bail Application No. 108/2015, Revision Petition No. 6/2015 and Revision Petition No. 7/2015 arise out of same set of facts, the Sessions Court (Hironi District) has decided to hear arguments on all of them on the same day.
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ISSUES
I. WHETHER THE ANTICIPATORY BAIL SHOULD BE ALLOWED TO THE ACCCUSED?
II. WHETHER THE ORDER OF APPLICATION NO. 111-112/2015 DISMISSING PETITION 420/2014 AND 787/2014 WAS TENABLE IN LAW?
III. WHETHER THERE IS SUFFICIENT EVIDENCE TO ADD MR. SAKSHAM TANDON AS AN ACCUSED UNDER SECTION 376/109 OF THE INDIAN PENAL CODE, 1860?
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SUMMARY OF ARGUMENTS
I. WHETHER THE ANTICIPATORY BAIL UNDER APPLICATION 108/2015 SHOULD BE ALLOWED TO THE ACCCUSED?
It is most humbly submitted before the Session Court of Hironi District that the anticipatory bail should not be allowed as investigation is still to take place. There is an apprehension of the accused to threaten the victim and also flee away from justice. Rajvir does not fulfil the essential requirements of anticipatory bail as laid down by the Hon’ble Apex court and hence, should not be granted the same.
II. WHETHER THE ORDER OF APPLICATION NO. 111-112/2015 DISMISSING PETITION 420/2014 AND 787/2014 WAS TENABLE IN LAW?
It is most respectfully submitted before the Hon’ble session Court of Hironi District the order dated 22.02.2015 was erroneous in nature. Avantika was not living in adultery and the said act was rape as clearly established as during the happening of the act she was intoxicated and the act was without her consent. The Ld. Magistrate failed to take note of the same. Thus it will be wrongful to disentitle the Petitioner her right to claim maintenance under Section 125 of the Criminal Procedure Code, 1973.
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III. WHETHER THERE IS SUFFICIENT EVIDENCE TO ADD MR. SAKSHAM TANDON AS AN ACCUSED UNDER SECTION 376/109 OF THE INDIAN PENAL CODE, 1860?
It is most respectfully submitted before the Hon’ble session Court of Hironi District that Mr. Saksham Tandon should be added as an accused with respect to FIR No. 129/2015 and hold that the order of the Ld. Magistrate was erroneous in nature and the primary evidence against Mr. Tandon was not looked into. On basis of the evidence on record and the strong nexus between the facts, evidence and the crime committed.
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ARGUMENTS
I. WHETHER ANTICIPATORY BAIL SHOULD BE ALLOWED TO THE APPLICANT ?
It is most humbly submitted that the anticipatory bail should not be granted to the applicant u/s 438 of the Criminal Procedure Code, 1973 1. In this instant case, the applicant has created a grave offense and has wrongly put allegations on the victim of adultery. FIR No. 768/2015 has been registered against the applicant under s. 376/34 of the Indian Penal Code. The applicant should be under custody for the investigation to take place.It must be remembered that an order of anticipatory bail to some extent intrudes in sphere of investigation of crime and the Court must be cautious in exercising such power of discretionary nature. Some very compelling circumstances must be made for granting anticipatory bail. 2 A. GROUNDS FOR ANTICIPATORY BAIL
In Savitri Agarwal &Ors v State of Maharashtra &Anr 3followed Sambhu Das 4 , Gurbaksh 5
6
7
8
Singh , Balchand , Poker Ram and Md. Abdul Sattar and upon perusal of all these cases
concluded certain guidelines which are essential for granting anticipatory bail:
1
Relevant provision of S 438 (CrPC 1973) reads as: Direction for grant of bail to person apprehending arrest: (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:(i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrersted, 2 Lilaram L Revani v R D Gandhi 1998 Cri LJ 14 at p. 15 (Guj). 3 2009 CrLJ 4290 4 Sambhu Das v State of Tripura 1988 (1) Crimes 634 5 Gurbaksh Singh v State of Punjab AIR 1980 SC 1632 MEMORIAL ON BEHALF OF STATE AND PETITIONER 15
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Though the power conferred under Section 438 of the Code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. Nonetheless, the discretion under the Section has to be exercised with due care and circumspection depending on circumstances justifying its exercise.
ii.
Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence 9 and that belief must be founded on reasonable grounds. 10
iii.
The observations made in Balchand Jain v State of MP 11, regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 12 should be read into Section 438 cannot be treated as conclusive on the point. There is no warrant for reading into Section 438, the conditions subject to which bail can be granted under Section 437(1) of the Code and therefore, anticipatory bail cannot be refused in respect of offences like criminal breach of trust for the mere reason that the punishment provided for is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.
iv.
No blanket order of bail should be passed and the Court which grants anticipatory bail must take care to specify the offence or the offences in respect of which alone the order will be effective. While granting relief under Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One such condition can even be that in the event of the
6
Balchand v State (1976) 4 SCC 572 Poker Ram v State AIR 1977 SC 366 8 Md. Abdul Sattar 1986 (1) Crimes 251 (Gau) 9 Suresh v State 1978 Cr LJ 677 10 Bhagirathi v State 1971 Cr LJ 1681 11 (1976) 4 SCC 572 12 CrPC 1973 s. 437 7
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police making out a case of a likely discovery under Section 27 of the Evidence Act 13, the person released on bail shall be liable to be taken in police custody for facilitating the recovery. Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed. v.
The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed. 14
vi.
The mere general allegations of malafide in the petition are inadequate, and the court must be satisfied on materials before it that the allegations of mala fide are substantial and the accusation appears to be false and groundless.15
vii.
In case there is apprehension of the accused being capable of influencing investigation to his advantage anticipatory bail should not be granted. 16
viii.
The power under Section 438 is of an extraordinary character and must be exercised sparingly in exceptional cases only. 17
To satisfy the requirements of the section the applicant has to make his case with reasons to show that18. (1) There is an accusation of commission of a Non-Bailable offence 19, (2) There are reasonable grounds of probability of his falsely implication with ulterior motives to injure and humiliate him 20
13
The Indian Evidence Act 1872, s 27 reads asHow much of information received from accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of anyoffence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. 14 Digendra Sarkar and Ors. v Unknown 1982 CriLJ 2197 15 Salauddin Abdulsamad Shaikh v State of Maharashtra (1996) 1 SCC 667 16 Indu Bala v State of Delhi 1991 Cri LJ 1774 (Del HC) 17 Mahanthagouda v State of Karnataka 1978 Cri LJ 1045 (Kant HC) 18 MS Adil, Law on Arrest and Bail (Capital Law House 2005) 19 Bhagirathi Mahapatra v State 1975 Cri LJ 1681 at p. 1683 (Ori) MEMORIAL ON BEHALF OF STATE AND PETITIONER 17
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(3) If directions are issued, no prejudice to the victim or the administration of justice will be caused. In Jagannath v State of Maharashtra21, the Court listed certain factors which have to be kept in view while granting any bail either post-arrest or pre-arrest, namely, (i) nature and seriousness of the accusations, (ii) the nature of the prosecution evidence, (iii) the severity of the likely punishment in case the prosecution succeeds, (iv) status of the accused, (v) likelihood of repeating similar offences, and (vi) likelihood of tampering of prosecution evidence, etc. B. ESSENTIALS OF ANTICIPATORY BAIL
In Siddharam Satlingappa Mhetrev. State of Maharashtra and others 22 the following factors and parameters can be taken into consideration while dealing with the anticipatory bail: i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;23 ii. The possibility of the applicant to flee from justice 24; iii. The possibility of the accused's likelihood to repeat similar or the other offences. iv. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. v. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code 25,
20
Bimaladak v State 1997 Cal Cri LR 72 1981 Cr LJ. 1808 (Bom.) 22 2011 AIR(SC) 312 23 Nimmagadda Prasad v Central Bureau of Investigation (2013) 7 SCC 466 24 State of Maharashtra &Anr v Mohd. Sajid Husain (2008) 1 SCC 213 25 The Indian Penal Code 1860 s 34 and 149 ( IPC 1860) 21
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the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; 26 vi. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;27 vii. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; 28 In Salauddin Abdulsamad Shaikh v State of Maharashtra ,29 the Supreme Court, inter alia, held that an order of anticipatory bail could even be obtained in cases of serious nature. C. CUSTODIAL INVESTIGATION REQUIRED
It is humbly submitted that there is a need for custodial investigation in this present case. The applicant has deliberately destroyed the recording because of his mala fide nature. The applicant has wrongfully kept the child in his custody. The applicant if enlarged on bail can influence the respondent through the child and there is reasonable scope of threatening the respondent.30 The Court while granting anticipatory bail must remember that the investigation has not yet been completed31 and, therefore, it is the duty of the court to ensure that the investigation should not be hampered or interfered with in any manner. 32 In Samabhai v State of Gujarat ,33 the court observed that a direction for anticipatory bail would not be allowed to come in the way of a fuller consideration of the question of custody of the person when the investigations are incomplete.
26
Vipin Nandan Varrier v State Of Karnataka 28 January 2015 Sanjay Chandra v Central Bureau of Investigation (2012) 1 SCC 40 28 Prahlad Singh Bhati v NCT Delhi (2001) 4 SCC 280 29 1996 SCC (Cri) 198 30 Gurbaksh Singh v State of Punjab AIR 1980 SC 1632 31 Alladeen v State 1977 Cr LR 669 32 Chandra Mohan v State of Kerala 1977 Ker LT 791 33 1977 Cr.LJ 1524 (Guj) 27
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The law cannot take such a risk which would result in harm to the investigation agencies and facilitate the illegal designs of the accused. An ounce of prevention is better than a pound of cure.34 Anticipatory bail cannot be invoked as a matter of right. It cannot be used to thwart investigation or to defeat an exercise of proper police powers needed for purposes of investigation.35 It is absolutely necessary that the investigating officer gets an opportunity to properly investigate the matter.36Where the offence is serious, the allegations are grave, and the accused may be required for custodial interrogation also, the Court must not exercise its discretion in favour of grant of anticipatory bail. 37 Anticipatory bail should not be granted where: (a) the allegations against the petitioner is that they had committed rape on a girl after making her unconscious (b) investigation is still in progress (c) there is no material to show mala fides.38It was held that where custodial investigation is required in the case, the accused should be kept under police custody. 39 The duty lies on the Court considering application for the anticipatory bail to strike a balance between the applicant’s right to personal freedom as well as the investigation right of the police.40 Accordingly, the Supreme Court held that S. 438 of CrPC cannot be considered as an essential ingredient of Article 21 of the Constitution; and its non-application to a certain special category of offences cannot be considered as violative of Article 21. 41Anticipatory bail cannot be granted as a matter of right nor should it be lightly granted.42 Thus, in the light of the above presented arguments, it is most humbly submitted before the Session Court of Hironi District that the anticipatory bail should not be allowed as investigation is still to take place. There is an apprehension of the accused to threaten the victim and also flee away from justice. 34
Mohd. Zakir Hussain v State of Haryana 2004 Cri LJ 469 at p. 473 (P&H) M Afzal Wani, Right to Bail ( Indian Law Institute, 2000) 36 State of Maharashtra v Satyakumar Kamal ksihore Nashine 2008 (1) AIR Bom R 509 37 Atanu Ghose v State (NCT of Delhi) 2001 Cri LJ 2445 at p. 2447 (Del) 38 Tarachand v State of HP 2000 Cr LJ 3764 (HP) 39 Anupam v State Of Haryana 31 July 2012, Punjab-Haryana High Court 40 Bharat Inder Singh Chahal v State of Punjab 2007 Cri LJ 2290 at p. 4495 (P &H) 41 State of MP v Ram Kishna Balothia 1995 SCC (Cri) 439 42 Manoj Agrawal v State of Chhattisgarh 2003 Cri LJ 3519 at pp. 3521-22 (Chhattis) 35
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II. WHETHER THE ORDER OF APPLICATION NO. 111-112/2015 DISMISSING PETITION 420/2014 AND 787/2014 WAS TENABLE IN LAW?
It is humbly submitted that the order passed by the Ld. Magistrate in Application NO. 111112/2015 is erroneous and against the interest of justice. BACKGROUND
On 22nd Metropolitan Magistrate (Hironi District) allowed Application Nos. 111- 112/2015, observing that Avantika has been living in adultery. Applicati on Nos 111- 112/2015 was filed by Rajvir as to dismiss the petition and application filed by Avantika (Petition No. 420/2014 & Application No. 787/2014) seeking maintenance on the ground that she is living in adultery. While Petition No. 420/2014 was filed in the Court of Metropolitan Magistrate seeking maintenance for herself and her daughter Sair a under Section 125.43 Avantika also filed an application (Application No. 787/2014) under Section 12 of the Protection of Women from Domestic Violence Act, 2005 in the Court of Metropolitan Magistrate for the same relief.
43
Relevant provisions of Criminal Procedure Code 1973, s 125 (CrPC 1973) reads as-Order for maintenance of wives, children and parents. (1) If any person leaving sufficient means neglects or refuses to maintain(a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, (4) No wife shall be entitled to receive and 4allowance from her husband under this section she is living in adultery, or if, without any sufficient reason, if she refuses to live with her husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. MEMORIAL ON BEHALF OF STATE AND PETITIONER 21
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A. REVISION APPLICATION FOR THE SAID ORDER CAN BE MOVED
It has been held that a reappraisal of evidence is permissible in a exercise of revisional court is not justified in making a reassessment of the evidence. 44 It has also been held that where a patently erroneous and perverse order is passed by the trail court, the revisional court may go into the correctness or legality of the order. 45 Here, the learned lower made a perverse order and allowed the Application 111-112/2015 observing that Avantika was living in adultery. However, the sexual act was involuntary as it happened when she was intoxicated. Hence, the revision court is entitled to hear the case. B. PETITIONER IS ENTITLED TO MAINTENANCE
By the virtue of Section 125 of the Code the people who are entitled to claim maintenance are:
Wife,
Legitimate or illegitimate child,
Legitimate or illegitimate abnormal child who has attained majority,
Father or mother.
B.1. Essentials For Maintenance Fullfilled: B.1.1 The Person From Whom Maintenance Is Claimed Must Have Sufficient Means To Maintain The Person Or The Persons Claiming Maintenance
The courts have not confined the word “means” to the visible means such as lands, employment or any property. Any able-bodied healthy 46 person must have means to support
44
Bakubhai v Gangaram (1988) 1 Ker LT 413 Krishna Kaur v Kartar Singh (1988) Cr LJ 717 (J&K) 46 Dhone Ram v Ram Die AIR 1955 All 320 45
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his wife and children47. The courts have gone to the extent have gone to the extent of laying down in numerous cases that even if the husband is insolvent, professional beggar, minor or monk, but he must support he is able-died and can eke out his livelihood. 48 This has also been held in Tarak Shaw.49 B.1.2 Neglect Or Refusal To Maintain
A neglect or refusal to maintain may be by words or conduct. 50 It may be expressed or implied51 and includes even a failure to maintain. 52 Where the magistrate concluded that the husband was not ready and willing to keep his wife with him, it was clear that the wife was living separately with sufficient cause, and the civil court while passing the decree of judicial separation found that the husband was at fault of giving ill-treatment to the wife, so she was living separately, it was held the wife had not deserted the husband within the meaning of “desertion” as defined in the Explanation to sub-s (1) of Section 13 of Hindu Marriage Act, 1955. She was held entitled to maintenance. 53 Physical torture is not the only way of cruelty. Circumstances by which a wife is compelled to remain away from the husband may amount to cruelty if the wife has no contribution for the way same and wife shall be entitled to maintenance. 54 B.1.3. The Person Claiming Maintenance Must Have Unable Means To Maintain Himself Or Herself.
The phase unable to maintain, it is not meant that she should be an absolute destitute and should be on the street, should beg and be in tattered clothes. 55 Even if the wife is gainfully employed, that would not disentitle her from initiating action under Section 125, and if she convinces that she even after employment she is unable to maintain herself. 56 47
Kandasami Moopan v Angammal AIR 1960 Mad 348 Basanta Kumari v Sarat Kumar 1982 Cri LJ 485, 486 (Ori HC) 49 Tarak Shaw v Minto Shaw1984 Cri LJ 206 (Cal HC) 50 Bhikaji v Maneckji(1907) 9 Bom LR 359 51 Mithilesh Kumari v Bindawasni (1990) Cr LJ 830 52 Chand Begum v Hyder Baig (1972) Cr LJ 1270 53 Sheela v Subash, 1993 Cr LJ 848 (Bom) 54 Manorama Swain v Giridhari Swain, 1993 Cr LJ 2595 (Ori) 55 Abdul Salim v Najima Begum 1980 CrLJ 232 (All) 48
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In case of wife,
The wife must not be living in adultery
She must not refuse without just ground to live with her husband.
She must not be living separately by mutual consent.
B.1.4 Avantika was Not Living in Adultery
In Badshah vs Sou. Urmila Badshah Godse & Anr 57, Supreme Court, stated that, “We are of the opinion that there is a non-rebuttable presumption that the Legislature while making a provision like Section 125 Cr.P.C., to fulfill its Constitutional duty in good faith, had always intended to give relief to the woman becoming “wife” under such circumstances.” Here, Avantika and Saira have both fulfilled all the requirements of maintenance. It has been held that the husband is under a legal obligation to maintain his wife. 58The respondent is a healthy able-bodies man, and therefore presumed to have means to support his wife and kids. Both are currently neglected or refused to be maintained. And being in city like Heldi, they are unable to maintain themselves. However, the lower court dismissed the Petition 420/2014 and maintenance under Application 111-112/2015 on the ground of adultery. However the court overlooked the fact that Avantika was intoxicated at the time of the sexual intercourse and thereby was unable to give her consent. This made the said act a rape. B.1.4.1. The Act In Question Was Rape.
It is humbly submitted that the said act was rape and the wrongful allegations put on the petitioner is mala fide in nature. Rape has been defined in Section 375 of Indian Penal Code, 1860. The essentials according to this section, of rape are: 56
Asha Anil Deshmukh v Anil Mahadeorao Deshmukh 1996 CriLJ 2751, II (1996) DMC 325, 1996 (2) MhLj 471 Criminal Miscellaneous Petition No.19530/2013 in Special Leave Petition (CRL.) No.8596/2013 58 Madan Lal v Suman AIR 2002 P&H 321 57
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a. There must be sexual intercourse as understood in terms of provisions of Section 375 (a) to (d) b. The sexual intercourse must be under any of the seven circumstance given in the section which are: i.
Against her will
ii.
Without her consent
iii.
With consent obtained under the fear of death or of hurt
iv.
Consent given under the misconception of fact that the man is her husband
v.
Consent given under misconception of fact that the man is husband
vi.
Consent given by reason of unsoundness of mind or under influence of any stupefying or unwholesome substance.
vii.
With a woman under eighteen of age with or without her consent.
viii.
With a woman who is unable to communicate her consent.
B.1.4.2. Avantika Was Intoxicated
During the time of the said act, Avantika was in a position to give her consent and the sexual intercourse was at the time she was intoxicated. Thus no informed consent was possible in such a state. It may be noted that the traces of benzodiazepine are found. Rohypnol (Flunitrazepam) is a type of benzodiazepine, a class of drugs that depresses the central nervous system.59 Rohypnol , is a central nervous system depressant in a class of drugs called benzodiazepines60 and is commonly referred to as "roofies" or "the date rape drug. Among other things, rohypnol causes dizziness, confusion, and memory impairment, the effects of which can last for up to eight hours or more. 61 If a person has consumed Rohypnol It can lead the victim being confused or unable to remember the rape when the drug wears off; this can delay reporting of the crime or hinder law enforcements response to it. The inability to remember an attack can be traumatic to 59
‘Rohypnol’ accessed on 22 March 2015 Fitzgerald, Nora and K Jack Riley , Flunitrazepam(Rohypnol)’(2000)accessed on 22 March 2015 61 Plaintiff-Appellee, v Curtis Alan Wharton526 f.3d 320 60
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victims of drug-facilitated sexual; they experience feelings of horror, powerlessness, degradation, and humiliation related to not knowing or remembering what happened to them.62 It is clear that this chemical can lead to lose of memory and an inability to give complete consent. It was only on the discovery of those photographs did she realize the reality of the situation. This also explains the delay for lodging of complaint. In Tulshidas Kanolkar v State of Goa63, the accused had sexual intercourse, repeatedly with a woman who was incapable of comprehending the vicissitudes of the act. Consequently the girl became pregnant. The Apex Court held that for constituting consent there must be exercise of intelligence based on knowledge of the significance and moral effect of the act. This rule is based on the premise that a lunatic, child and intoxicated person are immature to understand the consequences of the said act. 64 Further, Clause (5) of section 375 IPC was added vide the Criminal Law (Amendment) Act of 1983. The object of the new clause was to protect and safeguard the interest of the woman who accords consent for sexual intercourse without knowing the nature and consequences of the act by reason of unsoundness of mind or under the influence of stupefying or unwholesome substance or intercourse with a defective. In such cases it is presumed that the consent of the woman is not free and voluntary to exonerate the accused of the charge of rape. In Complin, 65 the accused made a woman quite drunk and whilst she was insensible violated her person; it was held that the offence was committed. It is a clear that Avantika was under influence of benzodiazepine. Section 9066 states that consent given by a person when intoxicated is not consent. Consent, on the part of a woman,
62
Fitzgerald (n 67) 2004 SCC (Cri) p. 44 : AIR 2004 SC 978 64 th K I Vibhute, P S A Pillai’s Criminal Law (11 Edition, Lexis Nexis,2012) 65 R v Camplin(1845) 1 Cox 220 66 The Indian Penal Code 1860, s 90 reads: Consent known to be given under fear or misconception.—A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.—if the consent is 63
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as a defence to an allegation of rape, requires voluntary participation 67 not only after the exercise of intelligence based on the knowledge of the significance 68 and not the moral quality of the act, but after having freely exercised a choice between resistance and assent69. It is humbly submitted before the honourable court that the petitioner did not have sexual intercourse voluntarily. it is stated in the application, that the respondent used to take drugs and sometimes even made her take drugs (which he referred to as ‘ice’) to enhance sexual desire and pleasure. it is further stated that the police, in the status report filed by them, have stated that on detailed investigation, they have recovered traces powdered substance which is revealed to be a derivative of benzodiazepine. The petitioner was under the influence of a drug when the act of sexual intercourse took place thus was rape and involuntary. The essence of adultery consists in the voluntary surrender to another person of the productive power or faculties of the guilty person and any submission of these powers to the service or enjoyment of any person other than husband or the wife comes within the definition of 'adultery'." Adultery means willing sexual intercourse, as distinguished from rape, with one of the opposite sex, while marriage subsists. Rape is not adultery as a ground for action because it is not voluntary. Unlawful voluntary sexual intercourse between two persons, one of whom at least is married, is the essence of the adultery in all cases. 70 Adultery may be generally defined as voluntary sexual intercourse after solemnisation of marriage with any person other than his or her spouse. It is a voluntary sexual intercourse of a married person with a person other than the offender's husband or wife. It means consensus sexual intercourse with one of the opposite sex, while marriage subsists.71 Since, rape in not an act of act of adultery, Avantika cannot be accused of adultery.
given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.—unless the contrary appears from the context, if the consent is given by a person who i s under twelve years of age. 67 State of Himachal Pradesh v Mango Ram AIR 2000 SC 2798 68 Rao Harnarain Singh Sheoji Singh v State AIR 1958 Punj 123 69 Gopi Shanker v State of Rajasthan AIR 1967 Raj 159 70 Orford v Orford (1921) 47 OLR 15 (Canada) 71 Lal Changmunga v Lianpari 7 January 1988< http://indiankanoon.org/doc/823353/> MEMORIAL ON BEHALF OF STATE AND PETITIONER 27
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Further, the legislature in Section 125(4) has stated that no wife shall be entitled to receive an allowance if the wife is living in adultery. The court has conveyed this in a present continuous sense.72 Outright adulterous conduct when the wife lives in a quasi-permanent union 73 with another person.74 However in this case, evidence does not show outright adulterous conduct in any way. Living in adultery connotes a course of adulterous conduct more or less continuous and not occasional.75 C. SAIRA IS STILL ENTITLED TO MAINTENANCE
A minor child, if unable to maintain itself, is entitled to claim maintenance.76 Here “minor” means a person who, under the provision of the Indian Majority Act, 1875, is deemed not to have attained majority.77 Saira is currently six years old and is a minor. She does not have means to maintain herself, and is currently neglected. It has been held that when the child is a minor, the application may be made by his or her mother, who, in the case of legitimate child, will be the wife of the father of the child. As established above the respondent is an able-bodied man and therefore, has sufficient means to provide for her. Further in Sharad Subramanyan v Soumi Mazumdar 78, the apex court held that: “The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu.”
72
Md. Abdul Sattar v State of Assam AIR 2009(NOC) 212 (Gau) Bilawati Pegu v PhukanPegu 1998 Cr LJ NOC 30 (Gau) 74 Kasthuri v Ramasamy 1979 CrLJ 74 l (Mad) 75 Rachita Rout v Basanta Kumar Rout 1987 CrLJ 655 (ori) 76 R V Kelkar,‘Lectures on Criminal Procedure Including Probation and Juvenile Justice’ (5th Edition, Eastern Book Company, 2014) 77 Explanatory Note (a) to the Code of Criminal Procedure 1973 s 125 (1) 78 (2006) 8 SCC 91 73
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In Ramesh Chander Kaushal vs Veena Kaushal 79, V.R. Krishna Iyer J, Held that: “The intention of the Legislature was clear, and the intention was to cast an obligation upon a person who neglects or refuses to maintain his wife or children to carry out his obligation towards his wife or children. The obligation is separate and independent in relation to each one of the persons whom he is bound in law to maintain.” Avantika and Saira fulfils all the essentials of the maintenance and the respondent been falsely accused of adultery. She along with her daughter is entitled to full maintenance. The decision of the lower court is incorrect and against the principle of natural justice. The judgement has caused great injustice to the petitioner. She should be immediately provided with the requisite maintenance for both the petitioner and her daughter by the respondent.
It is most respectfully submitted before the Hon’ble Session Court of Hironi District the order dated 22.02.2015 was erroneous in nature. The Petitioner was not living in adultery and the said act was rape as clearly established above. The Ld. Magistrate failed to take note of the same. Thus it will be wrongful to disentitle the Petitioner her right to claim maintenance under Section 125 of the Criminal Procedure Code, 1973.
79
1978 AIR 1807 MEMORIAL ON BEHALF OF STATE AND PETITIONER 29
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III. Whether the order dated 25.02.2015 dismissing application of 129/2015 is tenable in law?
It is humbly submitted that the Ld. Magistrate was erroneous in passing the order dismissing the application of 129/2015. The Ld. Magistrate did not appreciate the facts and the evidence in totality. Mr. Saksham Tandon is an abettor in the crime committed and should be added as an accused along with Mr. Rajvir and Mr. Ankush in FIR No. 768/2015. A. PRIMA FACIE CASE IS ESTABLSIHED
The nexus between the crime committed, the facts of the moot proposition adjudged by Mr. Saksham Tandon is too much to ignore. The said circumstances play a vital role, in adding Mr. Tandon as an accused in this present case; since the prima facie cases is made out. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.80 81
It has been held that Prima facie case and not evidence which is sufficient for conviction , is required for impleading a person as an accused. 82 It is clear that at the initial stage, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused.83
80
Subramaniam v Public Prosecutor (1956) 1 WLR 965 Radharani Panda v Arnapurna 1994 (3) Crimes 119 (Ori) 82 Mohan Wahi v State (CBI) New Delhi 1982 CrLJ 2040 (Del) 83 Aruna Chadha vs State Of Delhi on 25 July, 2013 CRL.REV.P. 305/2013 81
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Where the evidence of witnesses prima facie indicated that the offence under S. 120B or 109 by instigating the commission of offence and had been prima facie committed, summoning of the respondent was held proper. 84 A Sessions Court is not powerless to add any person as an accused other than those shown in the case.85 S. 319 of the Code applies not only to a Magistrate but also a Session Judge.86Where there is material on record and prima facie case is made out, a person can be summoned under S.319 to face trial. 87 If the prosecution at any stage can produce evidence which satisfies the Court that a person should have been made an accused, the Court can take cognizance and try him along with other accused.88 It is further submitted, that the Ld. Magistrate did not apply judicial mind and dismissed the petition without initiating proper investigation. Ishaani, the witness was never questioned by either the police or the magistrate. The order passed by the court is cryptic in nature and is bound to be set aside89 A.1. Circumstantial Evidence Is Present
It is pertinent to note that the counsel for the petitioner is not trying to establish the guilt of the accused but to add the name of Mr. Saksham Tandon as an accused under Section 319 r/w S. 190. It may be noted that the nexus between the following three incidents is very strong: a) The moot court problem’s facts adjudicated by Mr. Saksham Tandon. b) The conversation between Rajvir and Saksham Tandon. c) The happening of the same crime in Avantika’s life.
84
State of Karnataka v Krishnappa 2004 CrLJ 2175 (2177) (Kant). Kishwant Singh v State of Bihar 1993 CrLJ 1700 86 Margoobul Hasan v State of UP 1988 CrLJ 1467 87 Duli Chand v State of Rajasthan 1993 CrLJ 827 (Raj). 88 Municipal Corporation of Delhi v Ram Kishen Rohtagi 1983 CrLJ 159 (SC) 89 Satish Rakesh v State of Jharkhand 2002 CrLJ NOC 290 85
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It may be noted that if we fill the dots in the case, it is highly probable that Mr. Saksham Tandon was involved in happening of the event. Baron Parke J in Towell’s case90“the circumstances may often be so clearly proved, so closely connected with it, or leading to one result in conclusion, that the mind may be as well convinced as if it were proved by eyewitnesses.” It was held that Section 319 embraces in it all the three types of evidence which are oral or documentary or circumstantial.91 The evidence of a statement made to a person who is not himself called as witness may or may not be hearsay92. It is hearsay and inadmissible when the object of the evidence is to establish the truth93 of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. B. ESSENTIALS OF ABETMENT FULFILLED
Section 107 94 of the Indian Penal Code, 1860, deals with abetment. Abetment under the penal code involves active complicity on the part of the abettor at a point of time prior 95 to the actual commission of the crime, and it is an essential96 that the abettor of the crime must assist the principal culprit towards the commission of the crime97. It is a separate and a distinct offence, a crime apart.98
90
(1854) 2 C&K 309 Ram Chandra Misra v State of UP 2003 94 RD344 92 Balram Prasad Agarwal v State of Bihar (1997) 9 SCC 338 93 State of AP v Patnam AIR 2005 SC 746 94 The Indian Penal Code 1860, s 107 reads asAbetment of a thing.--A person abets the doing of a thing, who- First.-Instigates any person to do that thing; or Secondly.-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.-Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.-A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. 95 Faguna Kanta Nath v State of Assam AIR 1959 SC 673S 96 Sri Ram v State of UP AIR 1975 SC 175 97 Subash Chandra Bebarta v State of Orissa 1974 CRI LJ 217 (ORI) 98 Trilok Chand Jain v State of Delhi AIR 1977 SC 666 91
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The principal offenders in the present case, Rajvir and Ankush have committed the offence of rape on Avantika, it has been established that Avantika was raped by Ankush upon the help and consent of Rajvir. But, this whole act was the brain child of Saksham Tandon, who abetted the commission of the offence by instigating the accused and by giving him the idea to do so. It is an established rule that if the substantive offence against the accused, the principal accused has been established then the charge against the person who has been accused of abetting the offence strengthens 99. Abetment is constituted by:1. Instigating a person to commit an offence 100. 2. By engaging in a conspiracy to commit it. 3. By intentionally aiding a person to commit it 101. B.1. Instigation On Part Of Mr. Saksham Tandon
It is submitted that in the present case, Saksham Tandon instigated the accused to commit the said offence. A person is said to instigate another to commit an offence when he actively suggests or stimulates him to act by any means or language 102. Direct or indirect, it may even be in the form of hints103. The words used by the instigator as well as the backdrop of circumstances in which such words have been used are crucial while deciding the guilt of the abettor.104 When the abetment is by instigation actual words used for instigation need not be proved.105 Also, the Apex court, following judgement must be remembered:
99
Uma Dasi v Emperor AIR 1924 CAL 1031 Brijlal v Premchand AIR 1989 SC 1661 101 Sanju v State of Kerela AIR 2001 SC 175 102 Amiruddin Salebhoy AIR 1923 Bom 103 Baby john v State AIR 1953 TC 251 104 Prem Narain v State AIR 1957 All 177 105 Ibid. 100
MEMORIAL ON BEHALF OF STATE AND PETITIONER 33
THE 2
NATIONAL MOOT COURT AND DEBATE COMPETITION, 2015
TC 93
“The primary concern both at national and international level is about the devastating increase in rape cases and cases relating to crime against women in the world. India is no exception to it. Although the statutory provisions provide strict penal action against such offenders, it is for the Courts to ultimately decide whether such incident has occurred or not. The Courts should be more cautious in appreciating the evidence and the accused should not be left scot-free merely on flimsy grounds.”106 Mr. Tandon knew about the problems going on between Rajvir and Avantika. The said facts were told by the respondent to Rajvir about how to save himself form paying maintenance arising out of a moot court competition, knowing that Rajvir was having household problems.
It is most respectfully submitted before the Hon’ble Session Court of Hironi District that Mr.Saksham Tandon should be added as an accused with respect to FIR No. 129/2015 and hold that the order of the Ld. Magistrate was erroneous in nature. On basis of the evidence on record and the strong nexus between the facts, evidence and the crime committed.
106
State of UP v Munesh AIR 2013 SC 147 MEMORIAL ON BEHALF OF STATE AND PETITIONER 34
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