3rd INDRAPRASTHA NATIONAL MOOT COURT COMPETITION 2014
3rd INDRAPRASTHA NATIONAL MOOT COURT COMPETITION 2014
TeamCode: 14
IN THE HONBLE SUPREME COURT OF INDIA AT NEW DELHI, INDIA
Petition filed under Article 136Of the Constitution ofIndia
SLP ( Cr.)NO./2012
MR. AMIT SHARMApetitioner
Vs.
STATE OF DELHI.Respondent
WRITTENSUBMISSIONSONBEHALFOFTHE PETITIONER
Most Respectfully Submitted to the Honble Chief Justice of India
& other Companion Judges of the Honble Supreme Court of
India
TABLE OF CONTENTS
LIST OF ABBREVIATIONSINDEX OF AUTHORITIESA. CASESB. STATUTESC.
BOOKS AND OTHER AUTHORITIESSTATEMENT OF JURISDICTIONSTATEMENT OF
FACTSTATEMENT OF ISSUESSUMMARY OF ARGUMENTSARGUMENT ADVANCED
1) Whether the act of denial the clubbing of cases amounting to
infringement of the fundamental rights of accused?Violation of
article 21Violation of right to live with human dignityViolation of
right to privacyViolation of right to speedy trial2) Whether the
act of denial the clubbing of cases amounting to infringement of
the natural justice principle or amounting to gross
injustice?Violation of criminal natural justice principle 3)
Whether it is the need of hour to come with and accurate
legislation regarding clubbing of firs?
4) Whether mr. amit sharma is liable for offence of
conspiracy?
No agreementCircumstantial evidence is unreliableThe prosecution
unable to prove the guilty beyond reasonable doubtMens rea and
actus reus is absentAbsence of requisite mens rea5) Whether mr.
amit sharma is liable for offence of fraud?There is no actus reus
on the part of the accusedThere alleged fraudulent representation
cannot be attributed to accused6) Whether Mr. Amit sharma is liable
for offence of cheating?False or misleading
representationFraudulent or dishonest inducement of personIntention
to defraud is absentNo mens rea as to circumstancesNo coincidence
between actus reus and mens rea
PRAYER
LIST OF ABBREVIATION
AIRAll India Reporter
AllAllahabad High Court
CalCalcutta High Court
Cri LJ / Cr LJCriminal Law Journal
Cr.P.C.Code of Criminal Procedure
DelDelhi High Court
DWDefence Witness
Ed.Edition
GujGujarat High Court
IPCIndian Penal Code
ICIndian Cases
MadMadras High Court
n.Foot Note no.
OriOrissa High Court
p.Page No.
P&HPunjab and Haryana High Court
PatPatna High Court
DelDelhi high court
RajRajasthan High Court
SCSupreme Court
SCCSupreme Court Cases
SCJSupreme Court Journal
SCRSupreme Court Reporter
Sec.Section
v.Versus
INDEX OF AUTHORITIES
A. CASES1) Railway board v. chandrima das (2000) 2SCC 4652)
Kishore Singh Ravinder Dev v. State of Rajasthan,3) Meneka Gandhi
(Smt.) v. Union of India4) Francis coralie v. union territory of
delhi AIR 1994 SC 18445) M.Nagaraj v. union of india, (2006) 8 SCC
2126) Kartar singh v. state of Punjab7) State of W.B v. committee
for protection of democratic rights (2010) 3 SCC 5718) State of
Punjab v. baldev sing AIR 1999 SC 23789) Directorate of revenue v.
mohdnisarholia (2008) 2 SCC 37010) Hussainarakhatoon v. home
secretary, state of bihar, AIR 1979 SC 136011) Amitbhaianil Chandra
shah v. CBI (2013) 6 SCC 34812) R v. Local Government Board, ex p
Arlidge13) T.T. Antony Vs. State of Kerala &Ors. (2001) 6
SCC18114) Mohan Lalv. State of Uttar Pradesh AIR 1974 SC15)
JanarLal Das v. State of Orissa, 1991 (3) SCC 27;16) Jayaram and An
r. v. State of AP, AIR 1995 SC 2128.17) Jayaram and An r. v. State
of AP, AIR 1995 SC 2128.18) Mahmoodv. State of UP AIR 1976 SC 6919)
Derry v Peek (1889) 14 App Cas 33720) Ningawwa v
ByrappaShiddappaHirekurabar, AIR 1968 S.C. 95621) MuktilalAgarwal v
trustees of the P.F. A.I.R. 1956 S.C. 33622) Hedley Byrne and Co.
Ltd. V Heller and Partners (1964) A.C. 49523) Indian oil corpn. V.
NEPC india Ltd. (2006) 3 SCC (cri) 188
B) WEBSITES:
1. http://www.findlaw.com
2. http://www.judis.nic.in
3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx
4. http://www.scconline.com
C) STATUTES1. Constitution of India2. Code of criminal
procedure, 19733. Indian evidence Act, 1872D) BOOKS AND OTHER
AUTHORITES1) Gaur, KD, Criminal Law: Cases and Materials, (6th Ed.
2009) 2) Gupte and Dighe, Criminal Manual, (7th Ed. 2007) 3)
Harris, Criminal Law, (22nd Ed. 2000) 4) Hill, McGraw, Criminal
Investigation, (4th Ed. 2004) 5) I, III, IV Nelson R. A. Indian
Penal Code, 10th Ed. (2008) 6) I, Kathuria, R.P. Supreme Court on
Criminal Law, 1950-2002, ( 6th Ed. 2002)7) II, Mitra, B.B., Code of
Criminal Procedure, 1973 (20th ed. 2006) 8) II, Nandi, Criminal
Ready Referencer, ( 2nd Ed. 2007) 9) II, PrincepsCommentary on the
Code of Criminal Procedure, 1973 (18th ed. 2005) 10) III, Sarvaria,
SK, Indian Penal Code, (10th Ed. 2008) 11) Kelkar, R.V. Criminal
Procedure, (5th Ed. 2011) 12) Lal, Batuk, The Law of Evidence,
(18th Ed. 2010) 13) Ratanlal and Dhirajlal, The Indian Penal Code,
33rd Ed. (2011) 14) Ratanlal and Dhirajlal, The Law of Evidence,
22nd Ed. (2006) 15) Varshi, H.P. Criminal Trial and Judgment, (3rd
ed. 1981) 16) Tyagi, SurendraPrakash, Criminal Trial (2nd ed. 1996)
17) D.D Bashu,Commentry On the constitution of India 5576(8th ed. ,
2007)18) M.P Jain, Indian constitution law 235 (5th ed. 2009)
STATEMENT OF JURISDICTION
THE APPELLANTS HAVE APPROACHED THE HONBLE SUPREME COURT OF INDIA
UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA. LEAVE HAS BEEN
GRANTED BY THIS HONBLE COURT AND THE MATTER HAS NOW BEEN POSTED FOR
FINAL HEARING. ARTICLE 136 OF THE CONSTITUTION OF INDIA READS AS
HEREUNDER:
136. SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT.
(1) NOTWITHSTANDING ANYTHING IN THIS CHAPTER, THE SUPREME COURT
MAY, IN ITS DISCRETION,GRANT SPECIAL LEAVE TO APPEAL FROM ANY
JUDGMENT, DECREE, DETERMINATION, SENTENCE OR ORDER IN ANY CAUSE OR
MATTER PASSED OR MADE BY ANY COURT OR TRIBUNAL IN THE TERRITORY
OFINDIA.
(2) NOTHING IN CLAUSE (1) SHALL APPLY TO ANY JUDGMENT,
DETERMINATION, SENTENCE OR ORDER PASSED OR MADE BY ANY COURT OR
TRIBUNAL CONSTITUTED BY OR UNDER ANY LAW RELATING TO THEARMED
FORCES.
STATEMENT OF FACTS
History and backgroundMr. Amit Sharma, aged 34 years, is a
brilliant investment banker. He lives in Mumbai with his wife, a
housewife, and 2 minor children aged 7 years and 9 years
respectively along with his mother aged 70 years. He is working as
the managing director at a reputed Tarcorp company. During official
travels he often came across highly influential businessmen,
politicians, bankers, as well as local regional leaders and many
self-styled godmen.Meet baba mataji During one such travel he met
one Baba Mataji, a Godman who claimed to be blessed by a particular
deity and claimed to have possessed her powers. Mr Sharma started
to discuss his business dealings with Baba Mataji in order to gain
insights and predictions about the actions of his rivals. In a show
of love and affection, Baba Mataji has revealed to Mr Sharma one of
his biggest secret the power to triplicate money in a matter of
days by chanting mantras.Convinced with babajiBaba mataji asked Mr.
Sharma for lump sum of Rs. 1 lakhs to demonstrate the power.
Although Mr Sharma was a bit sceptical of this new power he gave
the money and was convinced when baba converted his Rs. 1 lac to
Rs. 3 lac just in day.Recommend to other personLater on Mr. Sharma
began to publicly vouch for apparent power of Baba Mataji and on
his persuasion began to recommend him to his acquaintances which
consisted of the highly influential businessman, politicians,
bankers, as well as local regional leaders. He impressed upon them
the magnitude of the power of Baba, especially the one for
triplicate the money and started collecting money from them in
order that they too benefit from Baba. Hundreds of people all over
India on the faith of representations of Mr. Sharma gave large
amount of money to him.Large scale ceremony as
once-in-lifetimeAfter the period of 4 months Baba Mataji impressed
upon Mr. Sharma of his desire to perform a large scale ceremony
wherein he would multiply the given money 7 times. Baba Mataji
wanted to increase their wealth, so he started convincing the
people. Accordingly he asked Mr. Sharma to label the ceremony as
once in lifetime chance and demands sums from the people on his
name. Accordingly Mr. Sharma travelled length and breadth of India
and collected money. Baba mataji vacant with large moneyPeople all
over india gave huge sums of money to mr. Sharma. Some people even
gave up their life savings, so that they may benefit from Baba. Mr.
Sharma accordingly collected money from 1897 people in India
amounting Rs. 150 crores and gave it to Baba.After 21 days Mr
Sharma deposited the money with Baba. He was intimated by his bank
in Mumbai that Rs. 25 crores have been credited to his account. Mr
Sharma went to Baba for the collection of money for disbursal. Upon
his arrival he found the residence of Baba vacant and the money
missing, even nobody knew where the Baba was. Mr Sharma believed
that Baba had miraculously managed to credit the money to the
people to whom it was so owed and went back home.First FIR
FiledAfter 14 days Mr Sharma received the first phone call from one
of investors who demanded the status of the money. Mr Sharma denied
having the knowledge of the money or of Baba. Soon the word of the
missing Baba and money.Mr Sharma was swamped with calls all over
India. Two days later, many FIRs was filed against Mr Sharma and
Baba Mataji alleging fraud, conspiracy and cheating, at Mysore and
Karnataka. Soon FIRS all over India were lodged against Mr Sharma
and Baba on same or similar grounds. In total, to this date, 1774
FIRs lodged against them in India.Took cognizance
The Dwarka district court, Delhi on a police report filed in a
FIR against Mr Sharma and baba mataji in its local jurisdiction,
took cognizance of the offence in the charge sheet and accordingly
issued warrants of arrest against Mr Sharma and baba
mataji.DisputeThe DCP (EOW) stated in his affidavit that the in
such cases was a club the multiple FIRs into one single FIR as the
offence all formed a part and parcel of the same transaction viz.
the accused duping the public at large but Dwarka district court,
Delhi disagreed with the reason of the DCP. There was a great deal
of inconsistency between the law as is, the law laid down by the
Honble supreme court of India and the practice of the police in
such cases.Special leave petitionMrSharma , immediately filed a
special leave petition in the supreme court praying that the Honble
court maybe pleased to consolidate and club all the cases against
him in one single trial.
STATEMENT OF ISSUE
1) WHETHER THE ACT OF DENIAL THE CLUBBING OF CASES AMOUNTING TO
INFRINGEMENT OF THE FUNDAMENTAL RIGHTS OF ACCUSED?2) WHETHER THE
ACT OF DENIAL THE CLUBBING OF CASES AMOUNTING TO INFRINGEMENT OF
THE NATURAL JUSTICE PRINCIPLE OR AMOUNTING TO GROSS INJUSTICE?3)
WHETHER IT IS THE NEED OF HOUR TO COME WITH AND ACCURATE
LEGISLATION REGARDING CLUBBING OF FIRS?4) WHETHER MR. AMIT SHARMA
IS LIABLE FOR OFFENCE OF CONSPIRACY?5) WHETHER MR. AMIT SHARMA IS
LIABLE FOR OFFENCE OF FRAUD?6) WHETHER MR. AMIT SHARMA IS LIABLE
FOR OFFENCE OF CHEATING?
SUMMARY OF ARGUMENTS
1) Whether the act of denial the clubbing of cases amounting to
infringement of the fundamental rights of accused?It is humbly
submitted before this Honble court that the act of denial the
clubbing of cases amounting to infringement of the basic and
fundamental rights of accused which lead to injustice with the
accused.2) Whether the act of denial the clubbing of cases
amounting to infringement of the natural justice principle or
amounting to gross injustice?It is humbly that accused had faced
multiplicity of legal proceeding against him in all over India
which violate the procedural fairness and principle of natural
justice. There is uncertainty in the position of law regarding
clubbing FIRs leads to violation of principle of natural
justice.Therefore, It is humbly request to this Honble court to
quashing the other FIR to meet the ends of justice.3) Whether it is
the need of hour to come with and accurate legislation regarding
clubbing of FIRs? It is humbly submitted before this Honble court
that in the matter, all FIR was club into a single FIRs as the
offence all formed a part and parcel of the same transaction viz.
the accused duping the public at large. Thus it is need of hour to
come with and accurate legislation regarding clubbing of FIR.4)
Whether Mr. Amit Sharma is liable for offence of conspiracy?It is
humbly submitted that accused does not committed such offence of
conspiracy on the following ground:-i. No agreementii.
Circumstantial evidence is unreliableiii. The allegation is
fallacious as mens rea and actus reus is absentiv. Absence of
requisite mens rea
5) Whether Mr. Amit Sharma is liable for offence of fraud?It is
humbly submitted that Accused did not false representation
knowingly. He did not know about the truth and believed that baba
mataji has power to triplicate money even though mr.sharma was a
bit skeptical of this new power he gave the money and was convinced
when baba converted his 1 lac to 3 lac just in days . Therefore, it
is humbly submitted that accused did not commit such offence
6) Whether Mr. Amit Sharma is liable for offence of cheating?It
is humbly submitted that accused did not false or mislead
representation and prosecution was unable to prove of intention of
defraud.
Whether the act of denial the clubbing of cases amounting to
infringement of the fundamental rights of accused?
Our constitution guarantees all the basic and fundamental human
rights set out in the universal declaration of human rights, 1948,
to its citizens and other persons. The chapter dealing with the
fundamental rights is contained in part-III of the constitution.
The purpose of part-III is to safeguard the basic human rights from
the vicissitudes of political controversy and to place them beyond
the reach of the political parties who, by virtue of their
majority, may come to form the government at the center or in the
state.The fundamental rights are available to all the citizens of
the country but a few of them are also available to persons. The
word life has also been used prominently in the universal
declaration of human rights, 1948. The fundamental rights under the
constitution almost in consonance with the right contained in the
universal declaration of human rights as also the declaration and
the covenants of civil and political rights and the covenants of
economic , social and cultural rights, to which India is party
having ratified them. They also have a right to life in this
country. Thus they also have the right to live, so long as they are
here, with human dignity. Just as the state is under an obligation
to protect the life of every citizen in this country, so also the
state is under an obligation to protect the life of the persons who
are not citizens[footnoteRef:1]. [1: Railway board v. chandrima das
(2000) 2SCC 465]
Therefore, accused is citizen of India and he is entitled for
the protection against fundamental rights.
The preamble of the Indian constitution emphasizes on the unity
and integrity of the nation as also on the dignity of the
individual[footnoteRef:2]. [2: Santoshmehandev, dynamics of
indianconstitution , constitution of indian-in precept and
practice, pp. 126-127( edited by C.K jain, secretary general ,
loksabha secretariat.)]
Violation of article 21
Article 21[footnoteRef:3]reads, no person shall be deprived of
his life or personal liberty except according to procedure
established by law. Article 21 of the Indian constitution envisages
a right to life with human dignity. The word life under art. 21
means quality of life[footnoteRef:4] which includes the right to
live with human dignity. In the leading case of Kishore Singh
RavinderDev v. State of Rajasthan, it was said that the laws of
India i.e. Constitutional, Evidentiary and procedural have made
elaborate provisions for safeguarding the rights of the accused
with the view to protect his (accused) dignity as a human being and
giving him benefits of a just, fair and impartial trail. However,
in another leading case of Meneka Gandhi (Smt.) v. Union of India
it was interpreted that the procedure adopted by the state must,
therefore, be just, fair and reasonable. The court gave a new
dimension to the art. 21 and held that the right to live is not
merely confined to physical existence, but it includes within its
ambit the right to live with human dignity. [3: Indian constitution
of india, article 21] [4: Francis coralie v. union territory of
delhi AIR 1994 SC 1844]
It is humbly submitted that in the instant case, accused has
faced rigors of multiple trials all over India for one offence
which unable to amount an effective defense against the allegation.
It violates the basic and fundamental right of accused.
Violation of right to live with dignityThe expression life in
article 21 of the Indian constitution does not connote merely
physical or animal existence. The right to life includes right to
live with human dignity. It is duty of the state not only to
protect human dignity but facilitate it by taking positive steps in
that direction. Every human being has dignity by virtue of his
existence[footnoteRef:5]. All those aspects of life, which make a
person live with human dignity are included within the meaning of
the word life. The state has a duty to enforce the human rights of
a citizen providing for fair and impartial investigation against
any person accused of commission of a cognizable
offence.[footnoteRef:6] In the instant case, state is unable to
provide fair and impartial trail to accused which violate the human
rights. [5: M.Nagaraj v. union of india, (2006) 8 SCC 212] [6:
State of W.B v. committee for protection of democratic rights
(2010) 3 SCC 571]
Therefore, it is humbly submitted that conducting a fair trial
for those who are accused of criminal offence is the cornerstone of
democracy. Conducting a fair trial is beneficial both to the
accused as well as to the society. A conviction resulting from an
unfair trial is contrary to our concept of justice.[footnoteRef:7]
[7: State of Punjab v. baldev sing AIR 1999 SC 2378]
Violation Right to privacyArticle of 21 of the constitution of
India provides protection citizen from oppression and injustice on
the other. It shall be strikes a balance between the enforcement of
law and protection of the valuable human rights of an accused must
be resorted to. In the instant case valuable human right of accused
right to privacy has been violated[footnoteRef:8]. [8: Directorate
of revenue v. mohdnisarholia (2008) 2 SCC 370]
Violation of right to speedy trialThe Supreme Court has laid
great emphasis on speedy trial of criminal offence, and has
emphasized it is implicit in the broad sweep and content of article
21[footnoteRef:9]. A fair trial implies speedy trial. No procedure
can be reasonable, fair or just unless that procedure ensures a
speedy trial for determination of the guilty of such person. [9:
Hussainarakhatoon v. home secretary, state of bihar, AIR 1979 SC
1360]
In the case kartarsingh v. state of Punjab the court has
observed that the concept of speedy trial is read into article 21
as an essential part of the fundamental right to life and liberty
guaranteed and preserved under our constitution. The right to
speedy trial begins with the actual restraint imposed by arrest and
consequent incarceration and continues at all stages, namely, the
stage of investigation, inquiry, trial, appeal and revision so that
any possible prejudice that may result from impermissible and
avoidable delay from the time of the commission of the offence till
it consummates into a finality, can be averred.It is humbly
submitted that accused has faced rigors of multiple trials all over
India which lead to violation of speedy trial and he would spend
the rest of his natural life fighting off the cases.
Administering criminal justice is a two end process, where
guarding the ensured rights of the accused under the constitution
is as imperative as ensuring justice to the victim. It is
definitely a daunting task, but equally a compelling responsibility
vested in the court of law to protect and shield the right of both.
Thus, a just balance between the fundamental rights of the accused
graranteed under the constitution and the expansive power of the
police to investigate a cognizable offence has to be struct by the
court. Accordingly , the sweeping power of investigation by the
police in respect of the same incident, giving rise to one or more
cognizable offence[footnoteRef:10]. As a consequence, this is a fit
case for quashing the other FIR to meet the ends of justice. [10:
Amitbhaianil Chandra shah v. CBI (2013) 6 SCC 348]
Whether the act of denial the clubbing of cases amounting to
infringement of the natural justice principle or amounting to gross
injustice?
Preamble of the constitution[footnoteRef:11] includes the words,
justice social, economic and political liberty of thought, belief,
worship..and equality of status and of opportunity, which not only
ensures fairness in social and economic activities of the people
but also acts as shield to individuals liberty against the
arbitrary action which is the base for principle of natural
justice. [11: Constitution of india]
Natural justice is indeed a humanising principle for it seeks to
ensure that law is fair and just and that there occurs no
miscarriage of justice. The phrases substantial justice,
fundamental justice, universal justice or fair play in action also
alludes to the notion of natural justice. It functions on the basis
of preconceptions such as man is basically good and hence he must
not be harmed and one ought to treat others as one would like
oneself to be treated. it has been criticized as sadly lacking in
precision as per the 1914 decision ofR v. Local Government Board,
ex p Arlidge[footnoteRef:12]. In spite of its flaws, natural
justice is widely accepted, adopted and enforced and is considered
an essential part of the philosophy of law. You may disagree with
the previous statement saying uncertainty of law is a cardinal sin.
However, do bear in mind that the vice of said uncertainty is far
outweighed by virtues such as greater possibilities of fairness and
prevention of miscarriage of justice among others that the law of
natural justice offers. Natural justice mandates procedural
fairness and hence seeks to make the decision-making process fair
and reasonable. Actions of the public authorities are also subject
to be governed by the principles of natural justice. Such actions
come under the ambit of administrative law for it is the law that
deals with the decision-making of administrative units of the
government (administrative tribunals, commissions etc). [12: (1914)
1 KB 160 (199).]
It is content that accused had faced multiplicity of legal
proceeding against him in all over India which violate the
procedural fairness and principle of natural justice. There is
uncertainty in the position of law regarding clubbing FIRs leads to
violation of principle of natural justice.
Therefore, It is humbly request to this Honble court to quashing
the other FIR to meet the ends of justice.
Whether it is the need of hour to come with and accurate
legislation regarding clubbing of FIRs?
It is the need of hour to come with and accurate legislation
regarding clubbing of FIRs.a case wherein in respect of thesame
cognizable offence and same occurrence two FIRs hadbeen lodged and
the Court held that there can be no secondFIR and no fresh
investigation on receipt of every subsequentinformation in respect
of the same cognizable offence orsame occurrence giving rise to one
or more cognizableoffences[footnoteRef:13]. [13: T.T. Antony Vs.
State of Kerala &Ors. (2001) 6 SCC181]
In the instant case each and every transaction was same and no
specific offence thus each offence deserved a one trial. The
investigating agency has to proceed only on theinformation about
commission of a cognizable offence which isfirst entered in the
Police Station diary by the Officer In-chargeunder Section 158 of
the Code of Criminal Procedure, 1973(hereinafter called the
Cr.P.C.) and all other subsequentinformation would be covered by
Section 162 Cr.P.C. for thereason that it is the duty of the
Investigating Officer not merelyto investigate the cognizable
offence report in the FIR but alsoother connected offences found to
have been committed in thecourse of the same transaction or the
same occurrence andthe Investigating Officer has to file one or
more reports underSection 173 Cr.P.C. Even after submission of the
report underSection 173(2) Cr.P.C., if the Investigating Officer
comesacross any further information pertaining to the sameincident,
he can make further investigation, but it is desirablethat he must
take the leave of the court and forward thefurther evidence, if
any, with further report or reports underSection 173(8) Cr.P.C. In
case the officer receives more thanone piece of information in
respect of the same incidentinvolving one or more than one
cognizable offences suchinformation cannot properly be treated as
an FIR as it would,in effect, be a second FIR and the same is not
in conformitywith the scheme of the Cr.P.C.The court further
observed that A just balance between the fundamental rightsof the
citizens under Articles 19 and 21 of theConstitution and the
expansive power of thepolice to investigate a cognizable offence
has tobe struck by the court. There cannot be anycontroversy that
sub-section (8) of Section 173CrPC empowers the police to make
furtherinvestigation, obtain further evidence (both oraland
documentary) and forward a further reportor reports to the
Magistrate. However, thesweeping power of investigation does
notwarrant subjecting a citizen each time to freshinvestigation by
the police in respect of thesame incident, giving rise to one or
morecognizable offences, consequent upon filing ofsuccessive
FIRs.
Therefore, it is humbly submitted before this Honble court that
in the matter, all FIR was club into a single FIRs as the offence
all formed a part and parcel of the same transaction viz. the
accused duping the public at large. Thus it is need of hour to come
with and accurate legislation regarding clubbing of FIR.Whether Mr.
Amit Sharma is liable for offence of conspiracy?
It is humbly contended that Mr. Amit Sharma ( hereinafter to be
referred to as the accused) is not guilty of the offence under sec.
120B of the Indian penal code, 1860 ( hereinafter to berefered to
as IPC ). In the matter at hand, it has been wrongfully alleged
that the accused has committed the offense of conspiracy. It is to
be noted that essential elements of Sec. 120B are s follows:- A.
There should be an agreement between the person who are alleged to
conspire.B. The agreement should bea. For doing an illegal act orb.
For doing by illegal means or act, which may not itself be
illegalC. In cases, other than an agreement to commit an offense,
the agreement must be followed by an overt act.The ingredients of
the offense of criminal conspiracy are clear that there should be
an agreement the person who are alleged to conspiracy, but in the
matter, there was no agreement between Mr. Sharma and Baba mete ji
even there was no meeting of the mind to commit such crime of
conspiracy. Russell on crime[footnoteRef:14] the gist of the
offense of conspiracy, then lies not in doing the act or effecting
the purpose for which the conspiracy is formed, nor attempting to
do them, nor in inciting others to do them , but in the forming of
the scheme or agreement between the parties, an agreement is
essential. Mere knowledge, or even discussion, of the plan is not,
per se enough. [14: 12th ed. Vol-1, p. 202]
No agreementThere was no agreement between baba mataji and
accused to commit such fraud even there was no meeting of the mind
to commit such crime of conspiracy. But conspiracy consists in the
agreement of two or more persons to do an unlawful act, or to do a
lawful act by unlawful means. The essence of the offence of
conspiracy is the fact of combination by agreement. The agreement
may be express or implied, or in part express and in part implied.
The conspiracy arises and the offence is committed as soon as the
agreement is made. The actusreus in a conspiracy is the agreement
to execute the illegal conduct, not the execution of it. It is not
enough that two or more person pursued the same unlawful object at
the same time or in the same place, it is necessary to show a
meeting of minds, a consensus to effect an unlawful purpose. It is
not however necessary that each conspirator should have been in
communication with every other.[footnoteRef:15] [15: Halsbury;s
laws of England (4th ed., vol.11, p.44,p.58)]
Circumstantial evidence is unreliableIt is a well settled
principle that where the case is mainly based on circumstantial
evidence, the court must satisfy itself that various circumstanced
in the chain of evidence should be established clearly and that the
completed chain must be such as to rule out a reasonable likelihood
of the innocence of the accused[footnoteRef:16]. [16: Mohan Lalv.
State of Uttar Pradesh AIR 1974 SC]
When even a link breaks away, the chain of circumstances gets
snapped and other circumstances cannot in any manner establish the
guilt of the accused beyond all reasonable doubts[footnoteRef:17].
When attempting to convict on circumstantial evidence alone the
Court must be firmly satisfied of the following three
things:[footnoteRef:18] [17: JanarLal Das v. State of Orissa, 1991
(3) SCC 27; A. Jayaram and An r. v. State of AP, AIR 1995 SC 2128.]
[18: Mahmoodv. State of UP AIR 1976 SC 69]
i. The circumstances from which the inference of guilt is to be
drawn, must have fully been established by unimpeachable evidence
beyond a shadow of doubt
ii. The circumstances are of determinative tendency, unerringly
pointing towards the guilt of the accused
iii. The circumstances taken collectively, are incapable of
explanation on any reasonable hypothesis except that of the guilt
sought to be proved against him
The prosecution fails to pinpoint how the accused is solely
responsible for securing entrance to the accused or instigating the
commission of the crime, notwithstanding that the entire case rests
solely upon uncorroborated circumstantial evidence. Therefore, it
is humbly submitted before this Honble Court that the charge of
conspiracy against the accused cannot be made in the present
matter.The prosecution is unable to prove the guilt beyond
reasonable doubt:
It is submitted that as per the Law of india, the burden of
proof lies on the prosecution to establish the guilt of the accused
beyond reasonable doubt. Halsburys Laws of England maintains that
prosecution should prove to full criminal standards any fact
essential to admissibility of evidence[footnoteRef:19]. The
abovementioned arguments do prove that there lies a reasonable
doubt in all the charges framed against the accused. [19: Halsburys
Laws of England 1374 (5th ed., Vol. 11.3, LexisNexis Butterworths
2010).]
The conviction is fallacious as mens rea and actus reus is
absent
It is a fundamental principle of criminal law that a person may
not be convicted of a crime unless the prosecution proves beyond a
reasonable doubt both (a) that responsibility is attributed to the
accused for a certain behaviour or the existence of a certain state
of affairs, in circumstances forbidden by criminal law and that the
accused has caused the prescribed event and (b) that the accused
had a defined state of mind in relation to the behaviour, existence
of a state of affairs or causing of the event.[footnoteRef:20]In
other words in every case the two elements of crime; actus reus and
mens rea have to be proved. [20: David Ormerod, Smith and Hogans
Criminal Law,(13th Edition,Oxford University Press,2011)]
Absence of requisite mens rea
A criminal act generally requires some element of wrongful
intent or other fault.[footnoteRef:21] This is known as mens rea or
guilty mind.[footnoteRef:22] In the instant matter, the accused has
been convicted of the offences of Cheating and Criminal Conspiracy.
It is submitted that the mens rea for either of the crimes is
absent in the instant matter. [21: Glanville Williams, Text Book Of
Criminal Law,( 2nd Edition,Universal Law Publishing,1999)] [22: The
Digest 17 (1st ed., Vol 14 (2), London Butterworths & Co. Ltd.
1993).]
Whether Mr. Amit Sharma is liable for offence of fraud?
It is humbly contended that Mr. Amit Sharma (hereinafter to be
referred to as the accused) is not guilty of the offence under
Section 17 of Indian Contract Act, 1872. In the matter at hand, it
has been wrongfully alleged that the accused has committed the
offence of fraud. It is to be noted that the essential elements of
fraud are as follows:1) Intent to deceive another party;2)
Knowledge about the falsity of the statement;3) A promise made
without any intention of performing it;4) Any act fitted to
deceive.The above essential clearly states that Mr. Sharma is not
liable for the offence of fraud because He had no intention to
deceive people. Neither he had knowledge about the falsity of Baba
Mataji nor he made any promise without the intention of performing
it. Fraud was defined in the well-known decision of the House of
Lords by Lord Herschell as Fraud is when it is sure that the false
representation has been made- a) Knowingly, b) Without belief in
its truth, c) Recklessly careless whether it be true or
false[footnoteRef:23]. [23: Derry v Peek (1889) 14 App Cas 337]
The expression any other act fitted to deceive naturally means
any act which is done with the obvious intention of committing
fraud[footnoteRef:24]. [24: Ningawwa v ByrappaShiddappaHirekurabar,
AIR 1968 S.C. 956MuktilalAgarwal v trustees of the P.F. A.I.R. 1956
S.C. 336]
Innocent misrepresentation- when a person makes a false
statement but there is neither an intention to deceive, nor any
negligence in making the statement, there is no liability for such
a statement under law of torts because in such a case an action
cannot lie either for fraud ,or for negligent
misstatement.[footnoteRef:25] [25: Law of torts, R.K. Bangia]
Where a person has entered into a contract after a
misrepresentation has been made to him by another party thereto and
as a result thereof, he has suffered a loss, then, if a person
making the misrepresentation would be liable to damages in respect
thereof, had the misrepresentation been made fraudulently, that
person shall be so liable notwithstanding that the
misrepresentation was not made fraudulently, unless he proves that
he has reasonable ground to believe and did believe up to the time
the contract was made that the facts represented were
true[footnoteRef:26]. [26: Hedley Byrne and Co. Ltd. V Heller and
Partners (1964) A.C. 495]
There is no actus reus on the part of the accused
The physical element of a crime or behaviour connected to the
crime is called the actus reus.A person must participate in all the
acts necessary to constitute a particular crime in order to be
guilty thereof[footnoteRef:27]. In the present case, there has been
no establishment that the accused was responsible for the alleged
fraudulent representation or that he conspired to do the same. [27:
Scott v. Com., Ky. 353, 197 S.W. 2d 774 (1946). ]
The alleged fraudulent representation cannot be attributed to
accused:It is a widely accepted principle of common law that the
prosecution must prove that the accused by his own act caused the
relevant result and it should be an intended causation.
For the accused to be convicted it has to be substantiated that
the fraudulent representation was caused by his own actions. In the
instant matter, the evidence offered fails to ascertain the same.
Accused did not false representation knowingly. He did not know
about the truth and believed that baba mataji has power to
triplicate money even though mr.sharma was a bit skeptical of this
new power he gave the money and was convinced when baba converted
his 1 lac to 3 lac just in days . Therefore, it is humbly submitted
that accused did not commit such offence.
Whether Mr. Amit Sharma is liable for offence of cheating?
It is humbly contended before this Honble Court that
MrAmitsharma (hereinafter to be referred to as the accused) is not
guilty of the offences under Sec. 420 of the IndianPenal Code, 1860
(hereinafter referred to as theIPC). In the matter at hand, it has
beenwrongfully alleged that the accused has committed offence of
cheating. Sec 420 deals with certain aggravated forms or specified
classes of cheating. To constitute an offence under section, the
essential ingredients are as follows[footnoteRef:28]:- [28: Indian
oil corpn. V. NEPC india Ltd. (2006) 3 SCC (cri) 188]
a) Deception of a person either by making a false or misleading
representation or by other action or omission
b) Fraudulent or dishonest inducement of that person to either
deliver any property or to consent to the retention thereof by any
person or to intentionally induce that person to do or omit to do
anything which he would not do or omit if he were not so deceived
and which act or omission causes or is likely to cause damage or
harm to that person in body, mind, reputation or property.
It is humbly submitted that the accused did not commit or
attempt to commit offence of cheating nor did he act conjointly
with the other and coupled with heavy reliance by the prosecution
on unreliable presumption evidence.
False or misleading representationIt is contended that the
accused did not mislead the people all over the india even they did
not know about baba mataji had intent to committed such fraud. He
did not deceit the people for multiply the money. Accused have no
knowledge about the deception at that time. He believed on baba
without any wrongful intention .Therefore, it is content those
accused did not false or mislead representation. Hence he would not
be liable for cheating.
Fraudulent or dishonest inducement of personAccused did not
dishonestly or fraudulently induce the people all over India. All
people were believed on baba mataji and give their money.
Intention to defraud is absent:The most basic ingredient of the
offence of cheating under 420 of the in IPC is intent to defraud.
Intention forms the gist of the offence. Intention literally means
a conscious movement with knowledge of the circumstances. In the
present matter, the accused has alleged that money was obtained by
accused on the basis of a fraudulent representation. To entrap the
accused it is necessary to prove that he had the intention or
knowledge that the act in question was fraudulent in nature. The
Prosecution has presented no such evidence so as to ascertain that
there existed such an intention.
No mens rea as to circumstances:The evidentiary burden in the
instant matter lies with the Prosecution. A guilty state of mind of
the accused has to be established. The Prosecution at best can
prove the blameworthy mind of the Group. The accused, in the
instant matter, had no intention to commit the offences. As
Glanville Williams observed that the proof of a mans intention can
be probed by determining whether there is a any reasonable
interpretation of his actions other than the hypothesis that he
intended the consequences.
It is contended that there exists no mens rea in the present
case.
No coincidence between actus reus and mens rea:
The only concept known to law is crime; and the crime exists
only when actus reus and mens rea coincide. It is established that
if there were two acts and the first act, though accompanied by the
mens rea did not lead to the commission of the crime, whereas the
second act, not accompanied by the mens rea caused the injury, the
accused must be acquitted.[footnoteRef:29]In the present case there
is no coincidence between the two and hence no crime has been
committed. [29: R v. Khandu, (1890) ILR 15 Bom 195; R v. Shorty,
[1950] SR]
In light of the contentions made by the petitioner it is most
humbly contended that the elements of crime are absent.
PRAYER
In lights of the facts presented, questions raised, arguments
advanced and authority cited the counsels for the Respondent most
humbly and respectfully pray before this Honble Court, that it may
be pleased to adjudge and declare that:
a) The petition filled by the Petitioner is maintainable. .
b) To consolidate and club all the cases against him in one
single trial.
c) Each and every transaction was a same and no specific offence
and thus each offence does not deserve a separate trail.
d) In order to grant a bail.
The Court being satisfied may also make any such order as it may
deem fit in the light of Justice, Equity and Good conscience.
And for this act of kindness the Respondent shall as duty bound
ever humbly pray. Respectfully submitted,
(Counsels Appearing for petitioner)
3