SNBP LAW COLLEGE

(AFFILATED BY SAVITRIBAI PHULE UNIVERSITY, PUNE)

3RD INTERNAL MOOT COURT 2021-2022

SUBMITTED BY:

RUSHIKESH BABAJI THORAVE (BA.L.L.B-V YEAR)

ROLL NO:

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 IN THE COURT OF HON'BLE SUPREME COURT OF INDIA,NEW DELHI

Special Leave Petition ___/20__

In the matter of

UNION OF INDIA ..................PETIONER

VS.

ADV. SUBHADRA BOSE AND OTHERS ................RESPONDENT

MEMORIAL ON BEHALF RESPONDENT

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 TABLE OF CONTENTS

Sr.No. DELINEATIONS PAGE NO.

1. INDEX OF AUTHORITIES

2. STATEMENT OF JURISDICTION

3. STATEMENTS OF FACTS

4. STATEMENT OF ISSUES

5. SUMMARY OF ARGUMENTS

6. ARGUMENT ADVANCED

7. PRAYER

8. BIBLIOGRAPHY

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 INDEX OF AUTHORITIES

CASES

1. Chairman, Railway Board & Ors. vs Mrs. Chandrima das & Ors, 2000

2. Anvar vs. State of J & K, AIR 1971(1) SCR 637=(1971) 3 SCC 104

3. Bandhua Mukti Morcha vs. U.O.I AIR 1984 SC 802= 1984(2) SCR 67= (1984) 3 SCC

4. Budhhisatwa vs. Ms. Subhadra Chacroborty (1996) 1 SCC 490

5. State Of Rajsthan vs. Mst. Vidyavati AIR 1962 SC 933

6. Gujrat vs. Menom Mohomed Haji Hasan AIR 1967 SC 1885

7. Smt. Basava Kom Dymogouda patil vs. State Of Mysore AIR 1977SC 1749

8. State Through Refference vs. Ram singh & others On 13 March, 2014, Delhi High Court

STATUTES

1. THE CONSTITUTION OF INDIA

2. THE JUVENILE JUSTICE ( CARE AND PROTECTION OF CHILDREN) BILL, 2015

ABBREVIATION

ABBREVIATION ACTUAL TERM ACTUAL TERM

& And

A.P. Andra Pradesh

CrPC Criminal Procedure Code

HC High Court

Ld. Learned

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GUJ Gujrat

SC SUPREME COURT Supreme Court

SCC SUPREME COURT CASES Supreme Court Cases

u/s Under Section (s) Under Section(s)

Vs. Verses Verses

Hon'ble Honorable Honourable

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 STATEMENT OF JURISDICTION

The appellants have approached the Hon'ble Supreme Court of India under Article 136 of the Constitution of India.
Leave has been granted by this Hon'ble Court and the matter has now been listed for arguments. The provision under
which the appellant has approached this Hon'ble Court and to which the respondent humbly submits, is read herein
under as:

Article 136 of the Constitution of India, 1950:

"(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 of India. (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
the armed forces."

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 STATEMENT OF FACT

Heena Ibraham, a citizen of Bangladesh came to India on official duty in the month of December 2016 before
returning to Bangladesh, she wanted to visit Ajmer sharif. With that intent in mind, she arrived at Calcutta on
24th December, 2016 and stayed at a hotel at 10. Sudder Street, Police Station Taltola. She arrived at Howrah
Railway Station on 01 January, 2017 at about 14.00 hours to avail Jodhpur Express at 23.00 Hours for paying a
visit to Ajmer Sharif She had, however, a wait listed ticket and so she approached a Train Ticket Examiner at
the Station for confirmation of berth against her ticket. The Train Ticket Examiner asked her to wait in the
Ladies Waiting room. She accordingly came to the ladies waiting room and rested there at about 17.00 hours
on 01st January, 2017 two unknown persons (later identified as one Ashoke Singh, a tout who posed himself
as a very influential person of the Railway and Siya Ram Singh a railway ticket broker having good
acquaintance with some of the Railway Staff of Howrah Station) approached her, took her ticket and returned
the same after confirming reservation in Coach No.S-3 (Berth No. 17) of Jodhpur Express. At about 20.00 hours
Siya Ram Singh came again to her with a boy named Kashi and told her to accompany the boy to a restaurant
if she wanted to have food for the night. Accordingly at about 21.00 hours she went to a nearby eating house
with Kashi and had her meal there. Soon after she had taken her meal, she vomited and came back to the
Ladies waiting room. At about 21.00 hours Ashoke Singh along with Rafi Ahmed a Parcel Supervisor at Howrah
Station came to the Ladies Niwas before boarding the train. She appeared to have some doubt initially but on
being certified by the lady attendants engaged on duty at the Ladies Waiting Room about their credentials she
accompanied them to Yatri Niwas. Sitaram Singh, a khalasi of electric Department of Howrah Station joined
them on way to Yatri Niwas. She was taken to room No.102 on the first floor of Yatri Niwas. The room was
booked in the name of Ashoke Singh against Railway Card pass No. 3638 since 30h December 2016. In room
No.102 two other persons viz. one Lalan Singh, Parcel Clerk of Howrah Railway Station and Awdesh Singh,
Parcel Clearing Agent were waiting. Heena Ibraham suspected something amiss when Ashoke Singh forced her
into the room. Awdesh Singh bolted the room from outside and stood on guard outside the room. The Sunil
Sharma (Age 16 yrs. boy helper in railway on contract basis) took liquor inside the room and also forcibly
compelled her to consume liquor. All the five persons who were present inside the room brutally violated,
Heena Ibraham, it is said. was in a state of shock and daze. When she could recover she managed to escape
from the room of Yatri Niwas and came back to the platform where again she met Siya Ram Singh and found
him talking to Ashoke Singh. Seeing her plight Siya Ram Singh pretended to be her saviour and also abused
and slapped Ashoke Singh. Since it was well past midnight and Jodhpur Express had already departed. Siya
Ram requested Heena Khatoon to accompany him to his residence to rest for the night with his wife and
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children. He assured her to help entrain Poorva Express on the following morning. Thereafter Siyaram
accompanied by Ram Samiram Sharma, a friend of Siyaram took her to the rented flat of Ram Samiram
Sharma at 66, Pathuriaghata Street, Police Station Jorabagan, Calcutta. There Siyaram raped Heena and when
she protested and resisted violently Siyaram and Ram Samiran Sharma gagged her mouth and nostrils
intending to kill her as a result Heena bled profusely. On being informed by the landlord of the building
following the hue and cry raised by Heena Ibraham, she was rescued by Jorabagant Police,"

DECISION TAKEN BY HON'BLE HIGH COURT

It was on the basis of the above facts that the High Court had awarded a sum of Rs.10 lacs as compensation for Smt.
Heena Ibraham as the High Court was of the opinion that the rape was committed at the building (Rail Yatri Niwas)
belonging to the Railways and was perpetrated by the Railway employees.

APPEAL TO THE HON'BLE SUPREME COURT

Being aggrieved by the said judgment of the High Court that had awarded a sum of Rs. 10 lacs as compensation for Smt.
Heena Ibraham, The Chairman, Railway Board filed an appeal before the Hon'ble Supreme Court on the ground that
Railways would not be liable to pay compensation to Smt. Heena Ibraham who was a foreigner and was not an Indian
national. It is also contended that commission of the offence by the person concerned would not make the Railway or
the Union of India liable to pay compensation to the victim of the offence. It is contended that since it was the individual
act of those persons, they alone would be prosecuted and on being found guilty would be punished and may also be
liable to pay fine or compensation, but having regard to the facts of this case, the Railways, or, for that matter, the
Union of India would not even be vicariously liable. It is also contended that for claiming damages for the offence
perpetrated on Smt. Heena Ibraham, the remedy lay in the domain of Private Law and not under Public Law and,
therefore, no compensation could have been legally awarded by the High Court in a proceeding under Article 226 of the
Constitution and, that too, at the instance of a practicing advocate who, in no way, was concerned or connected with
the victim.

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 STATEMENT OF ISSUES

1. Whether Heena Ibraham who is a foreigner and not an Indian citizen is entitled to any relief/ compensation under
constitution of India?

2. Whether the commission of an offence like rape by the person concerned, would make the railway or the Union of
India liable to pay compensation to the victim of the offence on the ground of vicarious liability?

3. Whether the accused Sunil Sharma (Age-16 yr. Boy) can be treated as an adult for the offence of Gang Rape?

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 SUMMARY OF ARGUMENT

1. Whether Heena Ibraham who is a foreigner and not an Indian citizen is entitled to any relief/ compensation under
constitution of India?

It is humbly submitted before this Hon'ble Court that the Heena Ibraham, who was not the citizen of this country but
came here as a citizen of Bangladesh was, nevertheless, entitled to all the constitutional rights available to a citizen so
far as "Right to Life" was concerned. She was entitled to be treated with dignity and was also entitled to the protection
of her person as guaranteed under Article 21 of the Constitution. As a national of another country, she could not be
subjected to a treatment which was below dignity nor could she be subjected to physical violence at the hands of Govt.
employees who outraged her modesty. The Right available to her under Article 21 was thus violated. Consequently, the
State was under the Constitutional liability to pay compensation to her.

2. Whether the commission of an offence like rape by the person concerned, would make the railway or the Union of
India liable to pay compensation to the victim of the offence on the ground of vicarious liability?

It is humbly submitted before this Hon'ble Court that Running of Railways is a commercial activity. Establishing Yatri
Niwas at various Railway Stations to provide lodging and boarding facilities to passengers on payment of charges is a
part of the commercial activity of the Union of India and this activity cannot be equated with the exercise of Sovereign
power. The employees of the Union of India who are deputed to run the Railways and to manage the establishment,
including the Railway Stations and Yatri Niwas, are essential components of the Govt. machinery which carries on the
commercial activity. If any of such employees commits an act of tort, the Union Govt., of which they are the employees,
can, be held vicariously liable in damages to the person wronged by those employees.

3. Whether the accused Sunil Sharma (Age-16 yr. Boy) can be treated as an adult for the offence of Gang Rape?

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It is humbly submitted before this Hon'ble Court that juvenile in conflict with law named as Sunil Sharma (Age- 16 yr.)
can be treated as an adult for the offence of gang rape for as per the provisions of the Code of Criminal Procedure, 1973
according to the JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) BILL, 2015 and we request an order transfer
of the trial of the case to the Children's Court having jurisdiction to try such offences from juvenile justice board.

ARGUMENTS ADVANCED

1. Whether Heena Ibraham who is a foreigner and not an Indian citizen is entitled to any relief/ compensation under
constitution of India?

It is most humbly submitted before this Hon'ble Court that the Mrs. Heena Ibrahim though is not a citizen of india but of
Bangladesh she is entitled to the relief Compensation under constitution of India Under article 14 and 21 which are
extended to "persons" and t just "citizens of India". The contention laid by appellant in his appeal lacks mainly on the
context that it does not realise that the words person and citizen both are used in Fundamental Rights as part of
Constitution of India and hence, with this few Fundamental rights are also available to the non citizens which assures
them a safe environment when visiting India.

I. Article 14 of constitution : Article 14. guarantees equality before law or the equal protection of laws within the
territory of India, is applicable to "person" which would also include the "citizen" of the country and "non- citizen" both.
In the case of Indra Sawhney etc vs union of India and others air 1993 SC 477, 1992 supp 2 SCR 454, Hon'able court has
remarked that "the right to equality is also recognized as one of basic features of Indian constitution. Article 14 applies
to all person and is not limited to citizens. A corporation, which is a juristic person, is also entailed to the benefit of this
article. This concept implied equality for equals and aims at striking down hostile discrimination or oppression of
inequality."

Thus, This judgement clarifies all the doubts that person mentioned in the Article 14 is not limited to the term citizens
but includes others as well even a commercial entity such as corporation and its main aim is in striking down hostile
discrimination or oppression of inequality as suggest by the appeal of my learned friend on the other side of the
argument. Hence, we can draw a conclusion that Mrs. Heena Ibraham is as much qualified to the equal treatment from
Law as the Railway board and her status ad citizen of Bangladesh is not a bar to it.

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Article 21 of constitution:- Article 21 (Protection Of Life And Personal Liberty) says "No person shall be deprived of his
life or personal liberty except according to procedure established by law. "In The Chairman, Railway Board & Ors vs Mrs.
Chandrima Das & Ors, 2000 it has been held by the Hon'ble Supreme Court that "The meaning of the word "life" cannot
be narrowed down. According to the tenor of language used in Article 21, it will be available not only to every citizen of
this the country, but also to a "person" who may not be a citizen of the country. "Thus this proves the validity of
statement that Mrs. Heena Ibrahim though is not a citizen of India but of Bangladesh she is entitled to the relief?
Compensation under constitution of India. Also in Anwar vs. State of J & K. AIR 1971 SC 337-1971 (1) SCR 637 (1971) 3
SCC 104, it was held that "the rights under Articles 20, 21 and 22 are available not only to "citizens" but also to "persons"
which would include "non citizens" In the landmark judgement in the case of Bandhua Mukti Morcha vs. U.O.I.. AIR 1984
SC 802= 1984 (2) SCR 67=(1984) 3 SCC Hon'ble Supreme Court that is the

fundamental right of every one in this country, to live with human dignity, free from exploitation. Further Hon'able
Supreme Court in Bodhisatwa vs. Ms. Subdhra Chakroborty (1996) I SCC 490 has held "rape" as an offence which is
violative of the Fundamental Right of a person guaranteed under Article 21 of the Constitution. The Court observed as
under: "Rape is a crime not only against the person of a woman, it is a crime against the entire society. It destroys the
entire psychology of a woman and pushes her into deep emotional crisis. Rape is therefore the most hated crime. It is a
crime against basic human rights and is violative of the victims most cherished right, namely, right to life which includes
right to live with human dignity contained in Article 21. Hence, through above discussed judgements Hon'able Supreme
Court has already set a precedence where non citizens will also have fundamental right to life. I rape will amount to its
violation, entitling Mrs. Heena Ibraham compensation under Constitution of India.

2. Whether the commission of an offence like rape by the person concerned, would make the railway or the Union of
India liable to pay compensation to the victim of the offence on the ground of vicarious liability?

It is most humbly submitted before this Hon'ble Court that vicarious liability refers to a situation where someone is held
responsible for the actions or omissions of another person. The liability of the government in tort is governed by the
principles of public law inherited from British Common law and the provisions of the Constitution. The whole idea of
Vicariously Liability of the State for the torts committed by its servants is based on three principles:

1. Respondeat superior (let the principal be liable).

2.Quifacit per alium facit per se (he who acts through another does it himself).

3.Socialisation of Compensation

Unlike Crown Proceedings Act, 1947(England), we do not have any statutory provisions mentioning the liability of
the State in India. Hence, the precedent for the vicarious liability of the state has been set through various decisions of
the hon'able courts. In State of Rajasthan vs. Mst. Vidhyawati AIR 1962 SC 933, it was held that the Govt. will be
vicariously liable for the tortious act of its employees. This was a case where a claim for damages was made by the heirs
of a person who died in an accident caused by the negligence of the driver of a Govt, vehicle. Reference may also be
made to the decisions of this Court in State of Gujarat vs. Memon Mahomed Haji Hasan AIR 1967 SC 1885 and Smt.
Basava Kom Dyamogouda Patil vs. State of Mysore AIR 1977 SC 1749.

It may be pointed out that functions of the Govt, in a welfare State are manifold, all of which cannot be said to be the
activities relating to exercise of Sovereign powers. The functions of the State not only relate to the defense of the
country or the administration of justice, but they extend to many other spheres as, for example, education, commercial,
social, economic, political and even marital. These activities cannot be said to be related to Sovereign power..

Running of Railways is a commercial activity. Establishing Yatri Niwas at various Railway Stations to provide lodging and
boarding facilities to passengers on payment of charges is a part of the commercial activity of the Union of India and this
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activity cannot be equated with the exercise of Sovereign power. The employees of the Union of India who are deputed
to run the Railways and to manage the establishment, including the Railway Stations and Yatri Niwas, are essential
components of the Govt. machinery which carries on the commercial activity. If any of such employees commits an act
of tort, the Union Govt., of which they are the employees, can. subject tom other legal requirements being satisfied, be
held vicariously liable in damages to the person wronged by those employees. Thus, in the light of the above mentioned
argument and decisions of the Hon'able Supreme Court we may conclude that the commission of an offence like rape by
the person concerned does make the railway or the Union of India liable to pay compensation to the victim of the
offence on the ground of vicarious liability.

3.Whether the accused Sunil Sharma (Age-16 yr. Boy) can be treated as an adult for the offence of Gang Rape?

It is most humbly submitted before this Hon'ble Court that THE JUVENILE JUSTICE (CARE AND PROTECTION OF
CHILDREN) BILL, 2015 under section 15 says. 15. (7) In case of a heinous offence alleged to have been committed by a
child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with
regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the
offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with
the provisions of subsection (3) of section 18:

Provided that for such an assessment, the Board may take the assistance of experienced

psychologists or psycho-social workers or other experts. Explanation. For the purposes of this section, it is clarified that
preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the
consequences of the alleged offence..

Further same Act in its section 18 (3) also says Where the Board after preliminary assessment under section 15 pass an
order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case
to the Children's Court having jurisdiction to try such offences.

Prior to the commencing of the Act in the landmark case of State through Reference vs Ram Singh on 13 March, 2014,
Delhi High Court also referred case of one o onvict was 17 year old at the time of commencement of the crime was as
per law tried by juvenile justice board and not the high court. However, this at that time there was no such provision of
trial by children court which came later through amended act of Juvenile Justice mentioned above. In light of the above
produced section it is submitted that a board of enquiry may be constituted under THE JUVENILE JUSTICE (CARE AND
PROTECTION OF CHILDREN) BILL, 2015 which may check the suitability of the Juvenile in conflict with law hereby
mentioned as Sunil Sharma to be tried as adult or not.

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 PRAYER

Wherefore in the light of the facts stated, issues raised, authorities cited and arguments advanced, it is most humbly
prayed before this Hon'ble Court that it may be pleased to:

1. The appeal having no merit may be dismissed with the observation that the amount of compensation shall be made
over to the High Commissioner for Bangladesh in India for payment to the victim. Smt. Heena Ibraham,

2. The payment to the High Commissioner shall be made within three months to lessen the ordeal she is facing for past
few months.

3. A board of inquiry may be constituted at earliest to try the case of Sunil Sharma (Age-16 yr. Junder JUVENILE JUSTICE
(CARE AND PROTECTION OF CHILDREN) BILL, 2015 for his treatment as an adult for the offence of gang rape for as per
the provisions of the Code of Criminal Procedure, and further it is requested an order transfer of the trial of the case to
the Children's Court having jurisdiction to try such offences from juvenile justice board may be made as per the
recommendation of the board of inquiry.

AND

Pass any other order that it may deem fit in the interest of Justice, Equity and Good Conscience.

And for this, the appellant as in duty bound shall humbly pray.

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 ( Counsel For Chandra Bose & Ors )

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