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MEMORIAL ON APPELLANT AND ARTICLE 136 F MEMORIAL ON APPELLANT AND ARTICLE 136 F MEMORIAL ON APPELLANT AND ARTICLE 136 F MEMORIAL ON APPELLANT AND ARTICLE 136 F MEMORIAL ON APPELLANT AND ARTICLE 136 F
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V.
- Table of Contents- - Appellant- - MEMORANDUM for THE APPELLANT- I
1.1 Charges of Waging War Has Been Falsely Pressed On The Accused ______________ 1
- Index of Abbreviations- - Appellant- - MEMORANDUM for THE APPELLANT- III 29. r/w READ WITH 30. SC SUPREME COURT 31. SCC SUPREME COURT CASES 32. SCR SUPREME COURT REPORTER 33. Supp. SUPPLEMENTARY 34. TADA TERRORIST & DISRUPTIVE ACTIVITIES (PREVENTION) ACT 35. UAPA UNLAWFUL ACTIVITIES PREVENTION ACT 36. POTA PREVENTION OF TERRORIST ACT 37. PMLA PREVENTION OF MONEY LAUNDERING ACT 38. Pat PATIALA 39. MLJ 40. Bom 41. LR 42. Tra-Co 43. Eds. 44. QB 45. ER 46. @ 47. ACR 48. U/S 49. UOI 50. V./Vs 51. Viz. 52. w.r.t
- Index of Authorities- - Appellant- - MEMORANDUM for THE APPELLANT- IV
1. D.D.BASU, Constitution of India , Lexis Nexis Butterworths, Wadhwa, Nagpur. 2. D.D.BASU, Criminal Procedure Code, 1973 , Lexis Nexis Butterworths Wadhwa, 4th Edn, 2010. 3. GAUR K. D, The Indian Penal Code , Universal Law Publishing Co. Pvt. Ltd., 4th^ Ed., 20 13. 4. HARI SINGH GOUR, The Penal Law Of India , 4869, (11th Edition, Delhi Law House, New Delhi, 2006). 5. H.M. SEERVAI, Constitutional Law of India: A Critical Commentary. [Delhi. Universal Law Publishing Co. Ltd]. 6. J. W. CECIL TURNER KENNY’S, Outlines of Criminal Law , Cambridge University Press, 1952. 7. KELKAR R. V., Criminal Procedure Code ,Pillai Eastern Book Company, 4th Ed. 2007 ( Revised by Dr. K. N Chandrasekharan). 8. M P JAIN, Indian Constitutional Law , 1180, LexisNexis Butterworths Wadhwa, Nagpur, 2010.
- Index of Authorities- - Appellant- - MEMORANDUM for THE APPELLANT- VI 7. ROBERT E RIGGS, “ Substantive Due Process Of Law” , 1990 Wis. L. Rev. 941 8. ROLLIN M. PERKINS, PARTIES TO CRIME, 89 U. Pa. L. Rev. 581 1940-1941. 9. SANTOSH EJANTHKAR, The Growing Threat of Money Laundering, Capgemin
10. Sedition Laws & The Death Of Free Speech In India , Centre for the Study of Social Exclusion and Inclusive Policy, National Law School of India University, Bangalore & Alternative Law Forum, Bangalore, February, 2011. 11. SHYLASHRI SHANKAR, “ Judicial Restraint In An Era Of Terrorism ” 11 Socio- Legal Rev. 103 2015. 12. SRIJONI SEN ET. AL, “ Anti-Terrorism Law in India- A Study of Statutes and Judgements, 2001-2014” , Vidhi – Centre for Legal Policy, June 2015. 13. VIVEK CHADDHA, “ Life Blood of Terrorism ”, Bloomsbury Publishing India Pvt. Ltd., 2011. DYNAMIC LINKS 1. www.manupatra.com 2. www.scconline.com 3. www.heinonline.org 4. www.westlawindia.com 5. www.lexisnexis.com 6. www.ebscohost.com IMPORTANT DEFINITIONS 1. Appellant for the purpose of this memorandum shall stand for Rampon. 2. Respondent for the purpose of this memorandum shall stand for Province. CASES
- MEMORANDUM for THE APPELLANT-
- Index of Authorities- - Appellant- - MEMORANDUM for THE APPELLANT-
- Index of Authorities- - Appellant- - MEMORANDUM for THE APPELLANT- X
- Statement of Facts- - Appellant- - MEMORANDUM for THE APPELLANT- XII
Bambia is one of the largest countries in the world with cultural, lingual and religious diversity with rich heritage. It is a quasi-federal, only democratic country and a leading economic player in the Asian Region. The Government of Bambia authorized corporate players to extract minerals. The initiative was opposed on a large scale by the people of central province in general and by the predominantly tribal districts in particular. The government deployed police and para-military forces (PMF) to suppress the protests; but gradually the protests became more organised and the protesters launched armed resistance (SDF) against Government initiatives. In the ensuing conflict between SDF and Governmental forces, casualties were reported from both sides. Ribon continued his business in Dhatu and Karol, even after the dispute. II 1 March, 1993 - PMF personnel roaming near Ribon’s locality. Around 2.00 am when his family was asleep, few men in PMF attire knocked on his door and enquired about Ribon from the servant, who opened the door. Ribon was then interrogated about certain SDF people who were making purchases from his shop during daytime and was taken away for further enquiries. Next morning at 10.00 am, when Ribon did not return home, his family members tried to trace him but the police found his dead body on the outskirts of the Dathu forest range. After a Week (7 or 8 March 1993) – PMF shot all the family members, Rampon escaped and lived with his uncle Akande. He managed studies and work together. Depressed individual but bright student in academics influenced by writing different interpretations to the texts of Marx, Engles and Mao. III 2002 - Rampon applied for common wealth scholarship and made it to a prestigious university of England for higher studies and chose a topic ‘Majoritarian Democracy and the Plight of Indigenous Minorities: A Socialist Perspective on Justice’ for his research project. Rampon’s life changed thereafter. With his conversations and discussions he became very popular among his batch mates. He started addressing the gatherings in the local community halls and
- Statement of Facts- - Appellant- - MEMORANDUM for THE APPELLANT- XIII gave them different insights of socialist ideals. Soon, many popular and influential people started coming to the places where Rampon addressed the public gatherings. A fan page was created on facebook followed by an account in his name by the end of 2005. Rampon and his followers thought of propagating essence of socialism in the western world on a larger scale, thereby conducting workshops in various places of North America and European Union. IV 2009 - Rampon became a popular name among communist countries. His views went viral on all the social media and had around half a million followers on Twitter Rampon secured a domain name truesocialism.org to update his followers on the developments and scheduling of his events and programmes. ‘Quattics’, a company incorporated in Virginia (USA), offered him to be the ambassador for their Corporate Social Responsibility (CSR) avenues. Quattics is engaged in research and manufacture of nuclear and other technologically advanced weapons and has business transactions worldwide to supply and deliver weapons to Governments and other organizations. V 14th August, 2010 - trueisocialism.org crossed the mark of 20 million followers. He also formed an NGO with the same name True-Socialism. True-Socialism received funds from around the world and its contributors include politicians, heads of states, corporations, and so on. Some of its contributors include the ones that are blacklisted by some western countries. Nevertheless, the organization became a platform for all sorts of monetary contributions. Quattics floated 20 million dollars subscribed capital. True-Socialism joined Alberico Co. Ltd.( Jamaica), a television news channel and later acquired the majority of above floated capital of Quattics. The funds received by true socialism thereafter were diverted for some other purposes. VI 5th December, 2012 - Rampon and his group of six followers visited tribal people in the jungle areas of Central Province in Bambia. Rampon was received with open arms. Rampon happened to visit Karol wherein he was overwhelmed by his childhood memories, and one midnight he was seen crying and screaming on the outskirts of Dathu forest range. VII
- Questions of Law- - Appellant- - MEMORANDUM for THE APPELLANT- XV
- Summary of Arguments- - Appellant- - MEMORANDUM for THE APPELLANT- XVI
The Counsel on behalf of Rampon ( hereinafter Appellant) most humbly submits that the penal action imposed on him is invalid and unjustifiable. The Sessions Court and High Court have erroneously charged him u/s 121 and 121-A of IPC, 1860 without any substantial evidence and the HC has enhanced his punishment to death from life imprisonment. The appellant has been subjected to procedural lapse on the part of the State as the charges framed against him are totally futile without any legal standing over it. The appellant has been framed on such charges on a mere presumption without any direct evidence against him.
2. THE CHARGES PRESSED AGAINST APPELLANT UNDER UAPA, 1967 AND PMLA, 2002 ARE NOT JUSTIFIED The Counsel on behalf of Rampon ( hereinafter Appellant) most humbly submits that the charges pressed against him under UAPA, 1967 and PMLA, 2002 are not true. There is no substantial evidence to prove beyond reasonable doubt appellant’s guilt. The appellant has been charged under such provisions of Unlawful Activities (Prevention) Act, 1967 that deal with terrorist activities. Such provisions construe strict liability upon the appellant and these provisions should be used judiciously. The respondent (State) has charged the appellant with such provisions under mere suspicion where no direct evidence is found against the appellant. 3. DUE PROCESS OF LAW HAS NOT BEEN COMPLIED WITH The Counsel on the behalf of Rampon ( hereinafter Appellant) most humbly submits that the due process of law has not been complied with by the State. The Constitution of India, 1950 provides every citizen a fundamental Right to Life, Equality and Fair Trial. All such fundamental rights have been surpassed by the State and the appellant has been charged with the provisions of the draconian UAPA, 1967 which deals with terrorist activities. Thus in the instant case, the appellant has been subjected to bias on the part of the State where such fundamental rights which are expressly guaranteed under the Constitution of India have not been complied with.
- Arguments Advanced- - Appellant- - MEMORANDUM for THE APPELLANT- 2 Naipur^5 ; 2. Attack against PMF camps^6 , Jagganagar tribal riots^7 , Social media post and Parliament Attack^8 1.1.1 Police station attack in Naipur, attack against PMF and Jagganagar Tribal Riots will not amount to waging war The involvement of the accused in these incidents is neither shown nor proved and even if that fact is disregarded, the charge of waging war has been wrongly pressed as these incidents can at the maximum amount to riots^9. It is a matter of great difficulty to distinguish and establish as to whether there has been levying or waging of war, or merely a riot of a serious kind.^10 Prima facie, a person who attacks a police station is guilty of rioting and if the Government charges him with waging war against it then it is incumbent upon the Government to show that there is an insurrection and not a riot and the insurrection is for the accomplishment of an object of a general nature.^11 Also, to prove an offence of rioting: 1. There has to be use of force or violence 2. By an unlawful assembly or any member thereof, 3. In prosecution of such common object of such assembly.^12 Here, the common object of the assembly must undoubtedly be illegal, for there can be no riot where force is employed to vindicate a lawful right, where such use is not only lawful but commendable.^13 Therefore, the evidence required to establish a case under S.121 must be directed towards proving of the following points: 1. That the accused waged war or attempted to do so or abetted the same. 2. That such war was against the Government of Bambia.^14 It is well settled that an accused cannot be convicted, if there are inherent improbabilities in the prosecution evidence regarding participation in crime.^15 Therefore, it is the duty of the (^5) Page 5, ¶14, Moot proposition, Army Institute of Law National Moot Court Competition 2016. (^6) Page 5, ¶14, Moot proposition, Army Institute of Law National Moot Court Competition 2016. (^7) Page 5, ¶14, Moot proposition, Army Institute of Law National Moot Court Competition 2016. (^8) Page 6, ¶16, Moot proposition, Army Institute of Law National Moot Court Competition 2016. (^9) Page 5, ¶¶14, 15, Moot proposition, Army Institute of Law National Moot Court Competition 2016. (^10) Per Lord Hope in R v. Andrew Hardie, (1820) 1 St. Tr. (N.S) 610 at p.623. (^11) Per CJ Cullins, - “ The distinction levying war against the King and committing a riot seems to consist in this, although they may often run very nearly into each other. Where the rising or tumult is merely to accomplish some private purpose, interesting only to those engaged in it, and not resisting or calling in question the King’s authority or prerogative then the tumult, however numerous or outrageous the mob may be, is held only to be a riot.”, Jubba Malla v. Emperor, (1943) 22 Pat 662. (^12) Lakshmiammal v. Samiappa Goundar, (1968) 1 MLJ 226. (^13) §2, 1 Hawk P.C. (C.), 1965; Hazara Singh v. State of Punjab, (1971) 1 SCC 529. (^14) HARI SINGH GOUR, THE PENAL LAW OF INDIA, 4869, (11th Ed., Delhi Law House, New Delhi, 2006).
- Arguments Advanced- - Appellant- - MEMORANDUM for THE APPELLANT- 3 Court to scrutinize the evidence carefully^16 , which in the instant case are only self-proclaimed facts, and even if believed to be true, they do not directly implicate the culpability of the accused. Merely meeting or association of the accused would by itself not be sufficient to infer the existence of criminal conspiracy, thus mere evidence of the same is not enough to bring home the offence of criminal conspiracy.^17 Privacy and secrecy are characteristics of conspiracy^18 thus if the appellant had been a part of this conspiracy, he would have gone underground and would not show up to anyone else.^19 However, he took out a congregational procession and was in prime time news regarding his pro-tribal movements. There has to be cogent evidence against each one of the accused charged with the offence of conspiracy.^20 The concurrence of agreement cannot be inferred by a set of irrelevant facts, artfully arranged so as to provide superficial coherence. Therefore such innocuous, innocent and inadvertent events and incidents should not enter judicial verdict.^21 It is submitted that prosecution’s case at best gives rise to a suspicion, however, a different version of the facts is equally possible. It pertinent to bear in mind that the offence of conspiracy cannot be established on mere suspicion and surmises or inferences which are not supported by cogent evidence.^22 It has been held that the law of criminal conspiracy is an instrument of government oppression.^23 Even the Hon’ble Supreme Court of India has suggested utmost diligence while dealing with the charge of criminal conspiracy. Wherein, the Court has to guard itself against the danger of unfairness to the accused.^24 In the instant case, the lower courts have failed in establishing that it falls under the relevant provisions. Since the evidence adduced is circumstantial in nature, lacking of any corroboration, there is no waging of war in the present instance. (^15) Lakshman Prasad v. State of Bihar, 1981 CrLR 478. (^16) Bhobhoni Sahu v. King, AIR 1949 PC 257; Kashmira Singh v. State Of Madhya Pradesh, AIR 1952 SC 159. (^17) Pran Krishna Chakravarty & Ors. v. Emperor, AIR 1935 Cal 580. (^18) Bayyappanavara Muniswamy and Ors v. Respondent, (1954) Cr LJ 905. (^19) Infra Note 20; Here, the LTTE Commander went underground after hatching the conspiracy of the Rajiv Gandhi Assassination. The Court cited this stating that conspiracy is mostly hatched in secrecy and a person going away from the public after conspiring against someone is enough evidence to implicate them. (^20) State of Tamil Nadu via the Superintendent of Police v. Nalini, (1999) 5 SCC 253. (^21) Devender Pal Singh v. State, AIR 2002 SC 1661; Keher Singh and Ors v. State, AIR 1988 SC 1883. (^22) P K. Narayanan v. State Of Kerala, (1995) 1 SCC 142; Supra Note 17 at pg. 524. (^23) K.D GAUR, INDIAN PENAL CODE, 826, (4th ed. reprint, Universal Law Publishing, New Delhi, 2009). (^24) State of Tamil Nadu via the Superintendent of Police v. Nalini, (1999) 5 SCC 253.
