IN THE SUPREME COURT OF INDIA

ORIGINAL JURISDICTION

(Under Article 32 of the Constitution of India)

WRIT APPEAL NO. _21__ OF 2023

BETWEEN:
THE CHAIRMAN, RAILWAY BOARD &Ors.

…………….PETITIONER

V/S.

Mrs. CHANDA BOSE & Ors.

……………RESPONDENT

MOST RESPECTFULLY SUBMITTED BEFORE THE HON'BLE CHIEF

JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE
HON'BLE SUPREME COURT OF INDIA ON BEHALF OF THE
RESPONDENT.

TABLE OF CONTENTS
1)LIST OF ABBREVIATION
 TABLE OF CASES
 STATUTES
 DATABASES

2)STATEMENT OF JURISDICTION

3) BRIEF FACTS

4) STATEMENT OF ISSUES

5) SUMMARY OF ARGUMENTS

6) ARGUMENT ADVANCED

7) PRAYER

LIST OF ABBREVIATIONS
1 & - And
2 Anr - Another
3 Apex Court - Supreme Court of India
4 Art - Article
5 Bom. - Bombay
6 Cal. - Calcutta
7 CrIJ - Criminal Law Journal
8 CrPC- Code of Criminal Procedure
9 Cl - Clause
10 Del. - Delhi
11 FIR – First Information Report
12 HC - High Court
13 Hon’ble - Honorable
14 i.e - That is
15 KER – Kerala

INDEX OF AUTHORITIES
I. Table of Cases:
A Regd. Society vs. Union of India & Ors.6 SCC 667 AIR 1999 SC 2979
(1999)

Life Insurance Corporation of India vs. Escorts Limited &Ors.1985 Supp.

(3) SCR 909(1986)

P. & O. Steam NavigationCo. Vs. Secretary of State (1861) 5 Bom. H.C.R

App.I,p.1

Mohd Aslam v. Union of India 1995 AIR 548

State of Rajasthan v. Ms. Vidhyawati (AIR 1962 SC 933)

II. Statutes:
1. Constitution of India,1950

2. Indian penal code 1860.

3. The Juvenile Justice (Care And Protection Of Children) Act,2015

III. Databases:
1. www.casemine.com

2. www.indiankanoon.com

STATEMENT OF JURISDICTION
The Counsel representing the Petitioners have endorsed their
pleadings before the Hon’ble

Supreme Court of India under Article 32 of The Constitution of

India in which the Hon’ble Court has jurisdiction.

The present memorandum sets forth the facts, contentions and

arguments.

STATEMENTS OF FACTS
1. That, 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.

2. That, She arrived at Howrah Railway Station on 1st Jan, 2017 at

about 14.00 hours to avail Jodhour Express at 23.00 Hours for paying a
visit to Ajmer Sharif. She had, however, a wait listed ticket and so the
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.

3. That, At about 17.00 hours on 1st Jan, 2017, two unknown persons
(later identified as one Ashok 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 confirmingreservation 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.

4. That, At about 21.00 hours Ashok Singh along with Rafi Ahmed a
parcel Supervisor at Howrah Station came to the ladies Waiting Room
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.

5. That, She was taken to room No.102 on the first floor of Yatri Niwas.
The room was booked in the name of Ashok Singh against Railway Card
pass no. 3638 since 30th Dec, 2016. In room no.102 two other persons
namely, one Lalan Singh, Parcel Clerk of Howrah Railway Station and
Awdesh Singh, Parcel Clearing Agent were waiting.

6. That, 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.

7. That, Then Sunil Sharma (Age 16 years 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, and committed gang rape on Heena Ibraham,
who was in a state of shock and daze.

8. That, 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 Ibraham to
accompany him to his residence to rest for the night with his wife and
children. He assured her to help entrain Poorva Express on the
following morning.

9. That, 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 Ibraham 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 Jorabagan Police.”

10. That,On the basis of abovementioned facts one social activist and
Advocate Mrs. Chanda Bose and few NGO Members filed petition under
article 226 as Public Interest Litigation against Railway Board and Union
of India for Heena Ibraham, the victim, and many such other victims of
rapes committed in the railway premises, saying that the main accused
in the instant case are employees of the railways, and the Union of
India and they are perpetrators of the heinous crime of gang rape
repeatedly committed upon the helpless victim Heena ibraham.

11. That, was on the basis of the above facts that the High Court
awarded a sum of Rs. 10 lacs under Article 226 as compensation to
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 the gang rape was perpetrated by the railway employees.
 STATEMENT OF ISSUES

ISSUE 1

Whether Henna Ibraham who is a foreigner and not an Indian citizen is

entitled to any relief / compensation under Constitution of India?

ISSUE 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?

SUMMARY OF ARGUMENTS

ISSUE 1 : WHETHER HENNA IBRAHAM WHO IS A FOREIGNER AND NOT

AN INDIAN CITIZEN IS ENTITLED TO ANY RELIEF / COMPENSATION
UNDER CONSTITUTION OF INDIA ?

1. It is respectfully submitted to the Supreme Court is that Henna

Ibraham is entitled to relief and compensation under the Constitution
of India for the violation of her fundamental rights.

2. The distinction between public law and private law needs to be

considered, and the court has the power to issue appropriate writs for
the enforcement of fundamental rights or for any other purpose.
3. The expanding horizon of Article 14 and other fundamental rights
allows for every executive action of the government or public bodies to
be scrutinized on the touchstone of the constitutional mandates. In this
case, the violation of fundamental rights of Henna Ibrahim, who was a
victim of rape, is involved, and relief can be claimed.

ISSUE 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 ?

1. The argument that the Central Government cannot be held

vicariously liable for the offense of rape committed by railway
employees is flawed. The theory of sovereign power proposed in the
Kasturi Lal case is no longer applicable in a welfare state, as the
government’s functions extend beyond the defence of the country or
administration of justice.

2. Running railways is a commercial activity, and the employees of the

Union of India who are assigned to manage the railways and related
establishments may be held vicariously liable for damages to the
person wronged by those employees.

3. The State of Rajasthan v. Mst. Vidhyawati case established that the

government would be vicariously liable for the tortious act of its
employees. Thus, the Union of India and railways can be held
vicariously liable for the offense of rape committed by railway
employees.
 ARGUMENTS ADVANCED

ISSUE 1 : WHETHER HENNA IBRAHAM WHO IS A FOREIGNER AND NOT

AN INDIAN CITIZEN IS ENTITLED TO ANY RELIEF / COMPENSATION
UNDER CONSTITUTION OF INDIA ?

1. It is respectfully submitted before the Honourable Supreme Court

that Henna Ibrahamis entitled to relief and compensation under the
Constitution of India. The distinction between “Public Law” and “Private
Law” needs to be considered by the Three-Judge Bench of this Court, as
it was previously observed by this Bench in Common Cause, A Regd.
Society vs. Union of India & Ors. (1999) 6 SCC 667 = AIR 1999 SC 2979 =
(1999) 5 JT 237. The Bench stated that “the High Court has the power
and jurisdiction to issue appropriate Writs in the nature of Mandamus,
Certiorari, Prohibition, Quo-Warranto and Habeas Corpus for the
enforcement of Fundamental Rights or for any other purpose under
Article 226 of the Constitution.” The Supreme Court also has the
jurisdiction to issue prerogative Writs under Article 32 for the
enforcement of Fundamental Rights guaranteed to a citizen under the
Constitution.

2. Under public law, the dispute between the citizen or a group of

citizens on one hand and the State or other public bodies on the other
hand is resolved. This is done to maintain the rule of law and to prevent
the State or public bodies from acting in an arbitrary manner or in
violation of that rule. Every executive or administrative action of the
State or other public bodies is open to judicial scrutiny, and the High
Court or the Supreme Court can quash the executive action or decision
that is contrary to law or is violative of Fundamental Rights guaranteed
by the Constitution.

3. With the expanding horizon of Article 14 read with other Articles

dealing with Fundamental Rights, every executive action of the
Government or other public bodies including instrumentalities of the
Government, or those that can be legally treated as “Authority” within
the meaning of Article 12, if arbitrary, unreasonable or contrary to law,
is now amenable to the writ jurisdiction of this Court under Article 32
or the High Courts under Article 226 and can be validly scrutinized on
the touchstone of the Constitutional mandates.

4. It Is further submitted that the earlier decision, namely, Life

Insurance Corporation of India vs. Escorts Limited & Ors. 1985 Supp.
(3) SCR 909 = (1986) 1 SCC 264 = AIR 1986 SC 1370, was relied upon.
The Court stated that it will examine actions of the State if they pertain
to the public law domain and refrain from examining them if they
pertain to the private law field. The difficulty lies in demarcating the
frontier between the public law domain and the private law field, and
the question must be decided in each case with reference to the
particular action, the activity in which the State or the instrumentality
of the State is engaged when performing the action, the public law or
private law character of the action, and other relevant circumstances.

5. Considering the above submissions, the contention that Smt. Henna

Ibraham should have approached the civil court for damages, and the
matter should not have been considered in a petition under Article 226
of the Constitution, cannot be accepted. Where public functionaries are
involved, and the matter relates to the violation of Fundamental Rights
or the enforcement of public duties, the remedy would still be available
under the Public Law, notwithstanding that a suit could be filed for
damages under Private Law.

6. In the instant case, it is not a mere matter of violation of an ordinary

right of a person, but the violation of Fundamental Rights that is
involved. Smt. Henna Ibrahim was a victim of rape. Hence the first issue
is addressed, and relief can be claimed.

ISSUE 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 ?

1. It Is respectfully submitted that if the person in question commits the

offence of rape, the railway or the Union of India may be held
responsible to compensate the victim on the grounds of vicarious
liability.
2. Learned counsel for the appellants argue that the Central
Government cannot be held vicariously liable for the offence of rape
committed by railway employees. They claim that liability under the law
of torts only arises when the complained act is performed as part of
official duty. Since rape cannot be considered an official act, the Central
Government would not be liable even under the law of torts. This
argument is flawed and goes against the settled law of vicarious
liability, as established by this Honourable Court in its various decisions.

3. The point as to how far the State was liable in tort first directly arose
in P. & O. Steam Navigation Co. Vs. Secretary of State. The facts of the
case were that a servant of the plaintiff’s company was proceeding on a
highway in Calcutta, driving a carriage which was drawn by a pair of
horses belonging to the plaintiff. He met with an accident, caused by
negligence of the servants of the Government. For the loss caused by
the accident, the plaintiff claimed damages against the Secretary of
State for India. Sir Barnes Peacock C. J. (of the Supreme Court) observed
that the doctrine that the “King can done wrong”, had not application
to the East India Company. The company would have been liable in
such cases and the Secretary of State was thereafter also liable. The
Court also drew the distinction between sovereign and non sovereign
functions, i.e. if a tort were committed by a public servant in the
discharge of sovereign functions, no action would lie against the
Government– e.g. if the tort was committed while carrying on
hostilities or seizing enemy property as prize. The liability could arise
only in case of “non-sovereign functions” i.e. acts done in the conduct
of undertakings which might be carried on by private person-individuals
without having such power.
4. It Is further submitted that in the case of State of Rajasthan v. Mst.
Vidhyawati (AIR 1962 SC 933), it was held that the government would
be vicariously liable for the tortious act of its employees. This case
involved a claim for damages by the heirs of a person who died in an
accident caused by the negligence of a government vehicle driver.

5. In Mohd Aslam v. Union of India, the Chief Minister of UP Kalyan

Singh had given the undertaking to the court for protecting Babri
Masjid in his personal capacity as well as in his official capacity. He was
found guilty of willfully committing breach of undertaking. Therefore
the court sentenced him to one day’s token imprisonment and a fine of
Rs 2000/-. A minister or officer of Govt. is also either in his official
capacity or if there is a personal element contributing to contempt in
his personal capacity, Liable in contempt. There is no immunity of any
authority of govt. If a personal element is shown in the disobedience of
the order of the court , then State will be held liable. Even in England
where the maxim “crown can do no wrong” has its influence in
distinction between the Crown as such and the executives.

6. Moreover, it is submitted that the theory of sovereign power, which

was proposed in the Kasturi Lal case, is no longer applicable in a welfare
state. It should be noted that the government’s functions in a welfare
state are numerous, and not all of them can be considered activities
related to the exercise of sovereign powers. The government’s
functions extend beyond the defence of the country or the
administration of justice to other areas such as education, commerce,
social welfare, economic development, politics, and even marital
affairs. These activities cannot be considered related to sovereign
power.
7. Running railways is a commercial activity, and establishing Yatri
Niwas at various railway stations to provide lodging and boarding
facilities to passengers is part of the Union of India’s commercial
activities. This activity cannot be equated with the exercise of sovereign
power.

8. The employees of the Union of India who are assigned to manage the
railways and related establishments, including railway stations and Yatri
Niwas, are essential components of the government machinery that
carries out these commercial activities. If any of these employees
commit an act of tort, the Union of India, of which they are employees,
may be held vicariously liable for damages to the person wronged by
those employees, subject to other legal requirements being met.

9. Therefore, the decision in Kasturi Lal’s case cannot be used to

support the appellants’ argument. The accused, using their official
position, booked a room in Yatri Niwas in their own name where the
alleged offence took place.

10. Thus, based on the above two precedents, the appellants’ actions
can be considered, and the Union of India and railways can be held
vicariously liable as a master and servant relationship is established.
PRAYER
IN THE LIGHT OF THE ARGUMENTS ADVANCED, CASES AND
AUTHORITIES CITED ABOVE, THE RESPONDENT HUMBLY REQUESTS
THE HON’BLE SUPREME COURT OF INDIA, TO

1.To uphold the decision passed by the Hon’ble High Court under
Article 226.

2. And pass any other order, direction or relief that it may deem fit in
the best interests of justice, fairness, equity and good conscience.

RESPONDENT

Through Counsel