IN THE HONOURABLE HIGH COURT OF TRILINGA UNDER ARTICLE 226 OF THE CONSTITUTION OF BHARATISTAN IN THE MATTER OF: 1. PRESIDENT OF ANDHRADESAM 2. SOFTGRID MANAGEMENT... PETITIONERS STATE OF TRILINGA. RESPONDENTS UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE HIGH COURT OF TRILINGA Scanned with CamScannerSTATEMENT OF JURISDICTION The Hon’ble High Court of Trilinga has jurisdiction in this matter under Article 226 of the Constitution of Bharatistan and also the inherent powers vested under Section 482 of the Code of Criminal Procedure to quash the criminal proceedings. Scanned with CamScannerEL — A LLL, 2” JUSTITIA MOOT COURT COMPETITION, 2019 ATEMENT OF FACTS BACKGROUND Bharatistan is a Federal state in Asia and it consists of 30 states and 10 union territories. The National Constitution of the country guarentees several fundamental rights and freedom to the citizens, some of which are available to the non citizens, Right to life and Personal liberty is a fundamental right conferred on all the persons in Bharatistan, Freedom of speech and expression is available only to its citizens. The country has a large population consisting of approximately 140 crores of people. The Federal Government, in order to authenticate the identity of all the citizens, decided to provise each citizen, a unique identity called, “Sadhar”, Sadhar is given to all the citizens in both soft and hard copies. It consist of each citizens’ name, parents name, date of birth, educational qualification, woek details, permanent address, marital status ete., All the information is secured with biometric: All these details of the citizens have been stored on a secure database under the control of Sadhar Authority of Bharatistan. Further, the mandate given to the Sadhar Authority is to prevent the data from falling into private hands, including private persons, organizations and even unrelated government authorities. 3. Andhranadu is one of the coastal states in Bharatistan which is under the rule of regional political party “Andhra Desam’. The main opposition party in Andhranadu is also an regional party called Andhra Congress. In view of the general elections scheduled to be held within the next two months, there is a surcharged political cnivironment in Andhranadu. Both the ruling and opposition parties are determined to win the election at any cost. One of the neighbouring states of Andhranadu is Trilinga. Trilinga is a newly formed state, carved out of Andhranadu about five years back, under the State Reorganization Act which permitted both the states to use the catipal of Trilinga, Bhagyanagara as the common capital for a period of 10 years THE DISPUTE 4. Mr. Vaghesh, an active supporter of the Andhra congress, working in a software company in Bhagyanagara came to know that all the particulars of voters in Andhranadu are available with one software company in Bhagyanagara called “Sofigrid” and that such company was was appointed by Andhra Desam Government in Andhranadu, for maintaining the data the data of all the residents and voters in the state for ascertaining the success in implementation of the State Government Schemes. 5. The data of all the voters mainteained by softgrid contained identical information available with the Sadhar Authority of the Federal Government and that the entire information, including the sensitive information of individual voters was made available to the ruling party in Andhranadu. He also found out that the same data was used by the ruling party workers to apply for deletion of the names of the voters known to be the supporters of the main opposition party i., The Andhra Congress in Memorandum for the Petitioners 6 Scanned with CamScanner28? JUSTITIA MOOT COURT COMPETITION, 2019 Andhranadu. His own vote was deleted by the Election Comission though he had not applied for deletion from the list. Vaghesh lodged a complaint with the police of Bhagyanagara against Sofigrid company, its Managing Director and other Directors, alleging that theft of data of about 3 croroes people of Andhranadu, was committed by Softgrid and its management and that the same has been misused by unintended beneficiaries for selfish purposes. . Simultaneously, he also lodged a complaint with the Election Comission of Bharatistan and The Sadhar Authority also seeking to take action against Softgrid and the ruling party of Andhranadu i.e., Andhra Desam. Acting upon the complaint, the Bhagyanagara police arrested the Managing Director of Softgrid and issued notices to the President of the Andhra Desam to appear before them to answer certain questions. JUDICIAL TREATMENT . Aggrieved by the action of the police, Softgrid Management and the President of Andhra Desam filed a writ petition before the Moot Court (similar to the Hon'ble High Court of Trilinga) to quash the proceedings. In view of the larger issues involved, the matter was referred to a Constitutional Bench of the Court to decide the following issues. Scanned with CamScanner— 2%? JUSTITIA MOOT COURT COMPETITION, 2019 ISSUE NO.1 WHETHER THE CITIZENS WHOSE DATA WAS ALLEGEDLY STOLEN, HAVE A RIGHT TO DATA PRIVACY? No. WHETHER THE ALLEGED DATA THEFT FOR ULTERIOR MOTIVES, AN OFFENCE OR A CIVIL WRONG UNDER ANY LAW IN FORCE IN THE TIME BEING, IN THE REPUBLIC OF BHARATISTAN OR ANY OF STATES? ASSUE NO. II WHETHER THE BHAGYANAGARA POLI REGISTER THE CRIMINAL CASE AND PROSECUTE THE SOFTGRID HAVE JURISDICTION TO MANAGEMENT IN BHAGYANAGARA? WHO ELSE HAS THE JURISDICTION TO COMPLAIN ABOUT THE DATA THEFT, IF IT IS AN ACTIONABLE WRONG? WHETHER THE RESPONDENTS IN THE CASE ARE RELIEF? Scanned with CamScanner98D jUSTITIA MOOT COURT COMPETITION, 2019 UMMARY OF ARGUMENT: 1) WHETHER THE CITIZENS WHOSE DATA WAS ALLEGEDLY STOLEN, A RIGHT TO DATA PRIVACY? HAV It is humbly submitted before the Hon'ble High Court of Trilinga that the data was not stolen by the software company but it was authorized to maintain the data of all the zovernment schemes implemented by the residents and voters for ascertaining the succe’ emment of Andhranadu. The company’s action is not violative of the Andhra Desam Gov right to privacy of the individuals, Also, that the allegations made by Mr. V sharing of data of the voters to aghesh against the ‘Andhra Desam party is frivolous and baseless and is liable to be quashed. 2) WHETHER THE ALLEGED DATA THEFT FOR ULTERIOR MOTIVES, IS AN OFFENCE OR A CIVIL WRONG UNDER ANY LAW IN FORCE IN THE TIME BEING, IN THE REPUBLIC OF BHARATISTAN OR ANY OF ITS STATES? It is humbly submitted before the Hon'ble Court that the act of Softgrid does not sumed constitute data theft and is not an offence. Even in the case when the allegations are a contract between Softgrid and the state Government of Andhranadu to be true, there exit which is binding and sharing the data of the citizens would amount to breach of trust and breach of contract which are civil in nature thereby making it a civil wrong, 3) WHETHER THE BHAGYANAGARA POLICE HAVE JURISDICTION TO REGISTER THE CRIMINAL CASE AND PROSECUTE THE SOFTGRID MANAGEMENT IN BHAGYANAGARA? It is humbly submitted before this Court that the Bhagyanagara police do not have the jurisdiction to register and prosecute Softgrid management in Bhagyanagara due to lack of territorial jurisdiction as the data belongs to the citizens of Andhranadu and the cause of ince the allegations made by Vaghesh when presumed to action arouse in Andhranadu. Also, be true, constitute a civil wrong, a criminal complaint or an FIR cannot be lodged at any police station Scanned with CamScanner2? JUSTITIA MOOT COURT COMPETITION, 2019 4) WHO ELSE HAS THE JURISDICTION TO COMPLAIN ABOUT THE DATA THEFT, IF IT IS AN ACTIONABLE WRONG? Itis humbly submitted before the Hon’ble court that authorities such as: A. Controller of certifying authorities (C.C.A) appointed by the central government under section 17 of Information Technology act B. Adjudicating Officer appointed by the central government under section 46 of Information Technology act C. The Cyber appellate tribunal established under section 48 of the Information technology act 5) WHETHER THE RESPONDENTS IN THE CASE ARE ENTITLED TO ANY RELIEF? It is humbly submitted before the Hon"ble court that the respondents in the present case are not entitled to any relief. Scanned with CamScanner2%? JUSTITIA MOOT COURT COMPETITION, 2019 ARGUMENTS ADVANCED 1) WHETHER THE CITIZENS WHOSE DATA WAS ALLEGEDLY STOLEN, HAVE A RIGHT TO DATA PRIVAC It is humbly submitted before the Hon'ble High Court of Trilinga that the right to privacy of the citizens of Andhranadu has not been violated. And the same shall be established by the following arguments: Firstly, that Softgrid has not stolen the data of the voters and residents. Secondly, legitimate state aim is a reasonable restriction on right to privacy. Thirdly, the allegations made by Vaghesh against the petitioners are frivolous. 1.1) Softerid has not stolen the data of the voters of Andhranadu The Andhra Desam Government of Andhranadu has authorized the Softgrid Company to maintain and store the data of all the residents and voters in the state for ascertaining the success in implementation of the State Government schemes.! Such an appointment of private organisations by the Government is done through a service contract in accordance with Article 299° of the Constitution of Bharatistan which empowers the State to enter into contracts. In the instant case, the contract between Andhranadu Government and Sofigrid is a consultancy service contract defined under Rule 177 of GFR 2017", We may justify the need for Procurement of Consultancy Services on consideration of the inadequacy of Capability or Capacity of required expertise in-house; the need to have qualified consultant for providing a specialized high quality service, etc. Even though, there may be internal capacity/eapability to do the job but there are considerations of economy, speed and efficiency in relation to additional requirement/commitmentusage of; a) Staff’ Management/Organization; b) Technological and Material Resources; c) Money and d) Time/Speed of execution, contracts are justified. Rule 178& 180 of GFR 2017*, permits Ministries/ Departments to hire external professionals, consultancy firms or consultant for a specific job, which is well defined in terms of content and time frame for its completion. * Para 4 (factsheet) ? Article 299 of the Constitution of India, 1950 (contracts) > Rule 177 of GENERAL FINANCIAL RULES 2017, Ministry of Finance, Department of Expenditure * Rule 178 and 180 of GENERAL FINANCIAL RULES 2017, Ministry of Finance, Department of Expenditure Memorandum for the Petitioners 1 Scanned with CamScanner2*? JUSTITIA MOOT COURT COMPETITION, 2019 From the arguments submitted above, the counsel on behalf of the petitioners contends that there exists a service contract between the Government of Andhranadu and Sofigrid, thereby authorizing Sofigrid to store and maintain the data of the voters of Andhranadu. 1.2) Right to Privacy of the citizens of Andhranadu has not been violated. The right to privacy emanates from Article 21° of the Constitution of Bharatistan which upholds the right to life and personal libe . Article 21 articulates that no person shall be deprived of his life or personal liberty except according to procedure established by law. The right to privacy, which is an intrinsic part of the right to life and liberty, and the freedoms embodied in Part III, is subject to the same restraints which apply to those freedoms, In the instant case, the collection of data by the Government of Andhranadu is not violative of the right to privacy of its citizens since the State is authorized legally, to keep a record of the intended beneficiaries and expenditures incurred thereby. The modern state of Bharatistan being a welfare state has the responsibility to provide benefits to impoverished and marginalised sections of society and ensure an inclusive growth of its citizens along with economic development. There is a vi | state interest in ensuring that ce public resources are not dissipated by the diversion of resources to persons who do not qualify as recipients Allocation of resources for human development is coupled with a legitimate concern that the utilisation of resources should not be siphoned away for extraneous purposes. For the said reasons, the central and the state Governmen s of the union of Bharatistan launch several welfare schemes in the process of which the Government of Andhranadu has collected the data of the citizens. The Hon’ble Supreme Court of Bharatis! an, in this regard has already held that- “Data mining with the object of ensuring that resources are properly deployed to legitimate beneficiaries is a valid ground for the state to insist on the collection of authentic ig the action of the Government of Andhranadu. 5 Article 21. Protection of Life And Personal Liberty: No person shall be deprived of except according to procedure established by la Part 3, Constitution of Inia, 1950 ® Justice K.S.Puttaswamy(Retd) vs Union OF India on 26 September, 2018 ” Justice K.S.Puttaswamy(Retd) vs Union Of India on 26 September, 2018 ‘or personal liberty Memorandum for the Petitioners 2 Scanned with CamScanner28? JUSTITIA MOOT COURT COMPETITION, 2019 Therefore, in the light of the above stated reasons, the counsel on behalf of the petitioners contends that the action of the Government of Andhranadu and Sofigrid does not encroach the Right to privacy of the citize1 1.3) Theallegations made by Vaghesh are frivolous and are liable to be quashed Mr. Vaghesh being an active supporter of the main opposition party, Andhra Congress, has lodged a criminal complaint by false accusations on the Petitioners, It has been specifically stated in the facts that Sofigrid has been appointed by the Government of Andhranadu for storage and maintenance of data of all the voters and residents in the state. And that appointment and authorization has been justified and established under issue 1.1 (supra). On the other hand, Mr. Vaghesh’s allegation of theft of data of about 3 crores people of Andhranadu,’ over Softgrid is frivolous and baseless. Considering the situation in Andhranadu as iterated in the facts, there is a surcharged political environment prevailing in the State because of the upcoming general elections and both the parties are determined to win it at any cost; the whole allegations made by Vaghesh stand solely for the purpose of framing the ruling party and defame it to seek political vengeance. The allegations made in the facts that the identical Sadhar data termed as the sensitive information of the citizens being made available to the Andhra Desam workers is hereby denied by the petitioners. In Som Mittal v. Govt. of Karnataka", he Suprente Court held that, © When grave miscarriage of justice would be committed if the trial is allowed to proceed; or * Where the accused would be harassed unnecessarily if the trial is allowed; or ‘© When prima facie it appears to Court that the trial would likely to be ended in acquittal. ® Factsheet para 4 * Factshect para 6 * Som Mittal vs Govt. OF Kamataka on 29 January, 2008 ‘Memorandum for the Petitioners 13 Scanned with CamScanner28? JUSTITIA MOOT COURT COMPETITION, 2019 Then the inherent power of the Court under Section 482 of the Code of Criminal Procedure can be invoked by the High Court either: To prevent abuse of process of any Court, or otherwise; To secure the ends of justice. Hence, the petitioners have approached this Hon’ble Court for getting the frivolous criminal complaint filed against them quashed through the inherent powers vested under Section 482 of Cr.p.c. and Article 226 of the Constitution of Bharatistan. 2) WHETHER THE ALLEGED DATA THEFT FOR ULTERIOR MOTIVES, IS AN OFFENCE OR A CIVIL WRONG UNDER ANY LAW IN FORCE IN THE TIME BEING, IN THE REPUBLIC OF BHARATISTAN OR ANY OF ITS STATES? The counsel on behalf of the petitioner humbly submits that the petitioners are not responsible for the alleged data theft In the facts of the case it is clearly stated that the Softgrid company was appointed by Andhra Desam Government in Andhranadu. The sensitive information of individual was made available to the ruling party in Andhranadu by Sofigrid company. DATA THEFT: Data theft is the act of stealing computer-based information from an unknowing victim with the intent of compromising privacy or obtaining confidential information The meaning of this term Data theft can be inferred by importing definition of ‘data from the Information Technology Act and ‘theft? from the Indian Penal Code 1860. As per the definition of ‘data’ provided under the IT Act'', data includes information, knowledge, facts, concepts or instructions in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internal Section 378 of IPC has been defined as- “Whoev« movable property out of the possession of any person without that person’s consent, in the memory of the computer. On the other hand, the term “theft” under ; intending to take dishonestly any moves that property in order to such taking, 1s said to cammtt theft.” * Scetion 2(1 (0) of Information Technology Act 2000 Memorandum for the Petitioners Scanned with CamScanner2" JUSTITIA MOOT COURT COMPETITION, 2019 Firstly, data is not moveable property. ‘Moveable Property’ is defined by Section 22 of IPC as ‘corporeal property’. A thing is ‘corporeal’ if it has a body, material and a physical presence. Data clearly does not qualify, as it is incorporeal, non-tangible and ephemeral sort of a property. This by itself may take ‘data’ outside the purview of Section 378 of the Ipc, Secondly, even assuming (without admitting) that data is ‘moveable property’, even then the act of stealing “data” may not necessarily entail ‘moving’ of data in the physical sense of the term as the data continues to be in the possession of the true owner. The data thief may have merely copied the data, with the original data remaining unmoved in the hands of the true owner. In the case of Adventz Investments and Holdings Limited & Ors. vs. Birla Corporation &Anr'’, it is said that ‘information’ by itself (without a physical manifestation) cannot be the subject matter of theft and the offence of theft in IPC is premised on ‘physicality’ of the property. Forming the subject matter of theft if such property is moved the original ‘owner should lose the possession of the property. In K.N.Mehra V. The State of Rajasthan", it is stated that there should be legitimate inference from the facts and the circumstances of the case that the facts should be proved to constitute theft." It can be clearly inferred from the facts of the and the meaning of the data theft that in this present case the data was handed over to the company by the government of the state and the company is not liable for data then. Even if the allegations are presumed to be true, , there exists a contract between Softgrid and the state Government of Andhranadu which is binding and sharing the data of the citizens would amount to breach of trust and breach of contract which are civil in nature thereby making ita civil wrong, CIVIL WRONG: A civil wrong or wrong is a cause of action under the law of the governing body. Tort, breach of contract and breach of trust are types of civil wrong. Something that amounts to a civil = 2o1scrL3369 ® AiR 1957 SC 926 '* 1957 AIR 369, 1957 SCR 623 Memorandum for the Petitioners 15 Scanned with CamScanner28? JUSTITIA MOOT COURT COMPETITION, 2019 Wrong is said to be wrongful. A wrong involves the violation of a right because wrong and right are complementary terms. Breach of Contract "Breach of contract” is a legal term that describes the violation of a contract or an agreement that occurs when one party fails to fulfill its promises according to the provisions of the agreement. Sometimes it involves interfering with the ability of another party to fulfill his duties. A contract can be breached in whole or in part. In Hridaya Rangan Pd Verma and Ors. V. State of Bihar and Anr'., itis stated that mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed, Breach of Trust: 1) Any act which is in violation of the duties or a trustee or of the terms of a trust, Such a breach nced not be intentional or with malice, but ean be due to negligence. 2) Breaking a promise or confidence. Misappropriation: or funds of another Misappropriation is the intentional, illegal use of the property, ideas, person for one’s own use or other unauthorized purpose, especially by a public official, a trustee of a trust, an executor or administrator of a dead person's estate or by any person with 's assets. a fiduciary duty to care for and protect another Section 73" of the Indian Contract Act provides that when a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract. Section 74" of the ICA 1872 states, when a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any % 2000 (2) SCR 859. * Chapter VI of Indian Contract Act 1872 © Chapter VI of Indian Contract Act 1872 Memorandum for the Petitioners 16 Scanned with CamScanner2%? JUSTITIA MOOT COURT COMPETITION, 2019 other stipulation by way of penalty, the party complaining of the breach is entitled, from the party who has broken the contr In the present case there is a contract between Andranadu and Sofigrid under Article 299'* of the Constitution of Bharatisthan. As the Softgrid company has not fulfilled its oblilgations by transferring the data to the ruling party i.e., Andra Desam, it has breached the contract and breach of contract is a civil wrong. Hence, it is humbly submitted that the criminal proceedings should be quashed. 3) WHETHER THE BHAGYANAGARA POLICE HAVE JURISDICTION TO REGISTER THE CRIMINAL CASE AND PROSECUTE THE SOFTGRID MANAGEMENT IN BHAGYANAGARA? The counsel on behalf of the petitioner humbly submits that it is a civil wrong and the Bhagyanagara police have no jurisdiction to register the case and the cause of action taken place in Andhranadu. A civil wrong or wrong is a cause of action under the law of the governing body. Tort, breach of contract and breach of trust are types of civil wrong. Something that amounts to a civil wrong is said to be wrongful. A wrong involves the violation of a right because wrong and right are complementary terms. ‘The Bhagyanagara police has no jurisdiction to register the case because, no FIR can be il dispute. In Section 154 of Criminal Procedure code” it clearly register under any ci states that police are duty bound to register a complaint about a cognizable offence. A wrong cannot be called as an offence. The offences are to be investigated by police station within whose local jurisdiction it was committed. Thus, to have jurisdiction to deal with the offence in any local areas, itis necessary that at least some part of eause of action must have arisen within the local jurisdiction of that court. In Y. Abraham Ajith & Ors vs Inspector Of Police, Chennai & Anr, it is clearly said that in civil cases, normally the expression juse of action” is used, in criminal cases as % MIS, Kailash Nath Associates vs Delhi Development Authority & Anr ® State of Gujarat V. Girish Radhakishan Vande * (2004) 8 SCC 100 Memorandum for the Petitioners v Scanned with CamScanner2%? JUSTITIA MOOT COURT COMPETITION, 2019 in Section 177 of the Criminal Procedure Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expr jon do not really make the position different. Under section 177 of criminal procedure code, every offence shall ordinarily be inquired into and tried by a court with whose local jurisdiction it was committed. To make investigation on the part of a police station is directly interlinked with the place where the trial for that offence can be held by the court. If the court has no jurisdiction to try offence, the police Station falling within the local limits of that court also has no jurisdiction to investigate the matter. In the case of Naresh Kavarchand Khatri v/s State of Gujarat & Anr' , Hon'ble Supreme Court has observed whether an officer in charge of a police station has the requisite jurisdiction to make investigation or not will depend upon a large number of factors including those contained in Sections 177, 178 and 181 of the Code of Criminal Procedure. In a case where a trial can be held in any of the places falling within the purview of the aforementioned provisions, investigation can be conducted by the officer in charge of the police station concerned which has jurisdiction to investigate in relation thereto, It is thus clear that according to Hon'ble Supreme Court jurisdiction to make investigation on the part of a police station is directly interlinked with the place where the trial for that offence can be held by the court. In the present case the cause of action aroused in Andhranadu, where the Softgrid company transferred the information to the ruling party ie., Andra Desam in Andhranadu. So, the 1. any police Bhagyanagara police has no territorial jurisdiction to register the com has an authority to register the complaint, then it would be the police of the Andhranadu as the cause of action was taken place in Andhranadu, Hence, it is humbly submitted that the Bhagyanagar police has no jurisdiction to register the criminal case and prosecute the Softgrid management. * (2008) 8 SCC 300 Memorandum for the Petitioners 18 Scanned with CamScanner2%? JUSTITIA MOOT COURT COMPETITION, 2019 4) WHO ELSE HAS THE JURISDICTION TO COMPL. THEFT, IF IT IS AN ACTIONABLE WRON \ ABOUT THE DATA It is humbl submitted before the Hon'ble court that the following authorities/individuals have the jurisdiction in regard to complaints about data theft: 1. CONTROLLER OF CERTIFYING AUTHORITY (C.C.A) Under see 17 of the information technology act, 2000 controller of certifying authorities (C.C.A) is appointed by the central government. The main functional departments under ce -A are: a) Technology b) Finance and legal and e) Investigation. Each of these departments has a deputy controller and assistant controllers. Under section 27 of Information technology act, the controller can delegate power to the deputy controller or any officer. Any such deputy controller or officer authorized by the controller shall take up investigation of any contravention related to data theft, privacy violations, defamation, spamming etc™ of the provisions of information technology act, rules or regulations under section 28. The controller's power to inves stricted to the licens igate contraventions is certifying authorities, subscribers and electronic signature certificates. In Yahoo India Pvt. Ltd. v. Union of India, the high court of Delhi examined the power of controller of certifying authorities (C.C.A) under Section 28 of Information technology act. The court made a clear dis ction in regards to jurisdiction of adjudicating officer in investigating contraventions under section 46 and jurisdiction of controller of certifying authorities in investigating contraventions under section 28 of the information technology act. Moreover, the right of CCA to investigate any contravention under section 28 was not disturbed by the court. . ADJUDICATING OFFICER If any person has committed a contravention of any of the provisions of this act or of any rule, regulation, direction or order, there shall be an adjudicating officer for holding an inquiry in the manner prescribed by the central goverment. The adjudicating officer exercises jurisdiction in respect of the contraventions in relation to chapter IX of the act. The supreme court in the case of Indian National Congress (1) v. Institute of Social Welfare * “where the law requires that an authority before arriving at a decision must make an enquiry, 2 Mis. Mascon Global Ltd. v. CCA, [Appeal No, 7/2009] % Yahoo India Pvt. Ltd. v. Union of India WP(C) 6654/2011 * Indian National Congress (I) v. Institute of Social Welfare AIR 2002 SC 2158 Memorandum for the Petitioners Scanned with CamScanner 192§? JUSTITIA MOOT COURT COMPETITION, 2019 irement of law makes the authority a quasi-judicial authority”. It is clear that the such a req adjudicating officer under the act is a quasi-judicial authority, The adjudicating officer is limited to the determination of contraventions and imposition under section 43, 43A, 44, and 45 of the act only. Further, Under Rule 4 of the Information Technology [“Qualification and Experience of Adjudicating Officer and Manner of Holding Enquiry] lists out few important provisions which are as follows [Rule 4] a) To exercise jurisdiction in respect of the contraventions in relation to chapter IX of the act b) To receive complaint from the complainant c) To issue notices together with all the documents to all the necessary parties to the proceedings, fixing a date and time for further proceedings; d) To hold an enquiry or dismiss the matter or may get the matter investigated ¢) To enforce attendance of any person or persons 1) To fix a date and time for production of documents or evidence and g) To hear and decide every application, as far as possible, in four months and the whole matter in six months If the adjudicating officer is convinced that scope af case (under adjudication) extends to offences under chapter XI of the act, needing appropriate punishment instead of penalties, then as per the aforesaid rules, he should transfer the case to the magistrate having jurisdiction to try the ease, through the presiding officer. I. THE CYBER APPELLATE TRIBUNAL, The act has established the Cyber Appellate Tribunal under section 48 of the Informati follows: Technology act, 2000 which reads Section 48. Establishment of Cyber Appellate Tribunal — (1) The central government shall, by notification, establish one or more appellate tribunals to be known as the Cyber Appellate Tribunal, The Cyber Appellate Tribunal having appellate jurisdiction and being an appellate authority is entitled to exercise its appellate jurisdiction both on fact as also in law over a decision or order passed by the controller of certifying authorities or the adjudicating officer. It was held Memorandum for the Petitioners 20 Scanned with CamScanner2"? JUSTITIA MOOT COURT COMPETITION, 2019 by the Supreme Court in Union of India v. Paras Laminates (P.) Lid *, “There is no doubt that the Tribunal functions as a court within the limits of its jurisdiction. It has all the powers conferred expressly by the statute. Furthermore, being a judicial body, it has all those incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers” The Cyber Appellate Tribunal in view of exercising its incidental and ancillary powers has directed the adjudicating officer of the state of Maharashtra to take cognizance of the complaint filed by ICICI account holder. Hon'ble Justice Rajesh Tandon, the chairperson of the tribunal opined”*: “In view of the complaint, I direct the secretary (IT) to look into the matter and pass appropriate orders after he ing both the parties. However, liberty is given to approach this tribunal in case no action is taken by any if the authorities by filing a proper appeal before this tribunal”. The power of the cyber appellate tribunal to examine the correctness, legality or propriety of the decision or order passed by the controller of certifying authorities or the adjudicating officer is absolute. 5) WHETHER THE RESPONDENTS IN THE CASE ARE ENTITLED TO ANY RELIEF? It is humbly submitted before the Hon'ble court that the respondents in the present case are not entitled to any relief since the allegations against the petitioners are false and lack substantial evidence. It is clear from the facts of the case that the allegations do not constitute data theft or data stealing or any offence under any law in force in the time being, in the Republic of Bharatistan or any of its states, Therefore, it is humbly submitted on behalf of the petitioners before the Hon'ble court that it was held in the case of State of Haryana and Ors. V. Ch. Bhajan lal, "the High Court may in exercise of powers under Art. 226 of Constitution or under sec. 482 Cr-P.C. to quash the ® Union of India v. Paras Laminates (P.) Ltd., Order dated 17-7-2009 2% Order dated 17-7-2009 in a complaint against ICICI bank * AIR 1992 SC 604 Memorandum for the Petitioners 21 Scanned with CamScanner2%? JUSTITIA MOOT COURT COMPETITION, 2019 proceedings and may interfere in proceedings relating to cognizable offences to prevent abuse court or otherwise to of the proces: sure the ends of justice in the following situations: I. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and a epted in their entirety do not prima facie constitute any offence or make out a case against the accused. IL Where the allegations in the First Information Report and other materials, if any, accompanying the F.LR. do not disclose a cognizable offence, justifying an officers under sec. ww of see. 155(2) of the Code. investigation by poli order of a Magi: 156(1) of the Code except under an rate wil in the purvi IIL Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a se against the accused. IV. Where, the allegations in the FIR do not constitute a cognizable offence but const tute only a non-cognizable offence, no investigation permitted by a police officer without an order of a Magistrate as contemplated under sec. 155(2) of the Code. V. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, VI. Where there is an express legal bar engrafted in any of the provisions of the Code or the concemed Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. VII, Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Where allegations in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified. Memorandum for the Petitioners 2 a Scanned with CamScanner28° JUSTITIA MOOT COURT COMPETITION, 2019 Clearly, it can be inferred from the facts that the allegations in the First Information Report do not prima facie constitute an offence and similarly, the allegations lack evidence. Hence, it is prayed that the FIR should be quashed as it is not in conformity with the procedure established by law. Scanned with CamScanner2*° JUSTITIA MOOT COURT COMPETITION, 2019 PRAYER Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities cited, it is most humbly prayed before the Hon'ble High Court of Trilinga that it may be pleased to: 1) Issue a writ of mandamus to quash the criminal proceedings against the petitioners Ander Pass any other order(s) that the Hon'ble Court ckems fit in the interest of Justice Equity and Goad conscience. For this act of kindness, the Petitione s in duty bound, shall humbly pray. COUNSELS FOR THE PETITIONERS Place: Date: Scanned with CamScanner