in the case of - surana and surana & surana national trial advocacy competition - 2014 in the...
TRANSCRIPT
SURANA & SURANA NATIONAL TRIAL ADVOCACY COMPETITION - 2014
IN THE COURT OF SESSIONS
BAMBI, THANE
IN THE CASE OF
STATE OF BAMBI
(PROSECUTION)
VS
PANNA, SABA, JAMIL
(DEFENCE)
MEMORIAL ON BEHALF OF THE PROSECUTION
TEAM CODE __________
II
TABLE OF CONTENTS
INDEX OF AUTHORITIES………………...……………………………………………. III
STATEMENT OF JURISDICTION…………..…………………………………..……... VI
STATEMENT OF FACTS………………………...………………………………...…… VII
THE STATEMENT OF CHARGES……………..…………………………………….. VIII
THE SUMMARY OF ARGUMENTS………………………………….…………………IX
ARGUMENTS ADVANCED………………………………………………………….……1
1. MR. PANNA BOY, MR. SABA AND MR. JAIMIL WERE INVOLVED IN CRIMINAL CONSPIRACY
AGAINST MS. NAIKA……………………………..…………………………………...……1
1.1 ALL THE ACCUSED SHARED THE SAME OBJECT OF COMPLETING THE MOVIE BY
ADOPTING ANY MEANS POSSIBLE…………………………………………….…1
1.2. THE CHAIN OF EVENTS THAT OCCURRED WERE ALL PART OF THE SAME
TRANSACTION/ RES GESTAE...…………………………………………..……...2
1.3. ALL THE ACCUSED COMMITTED A SERIES OF ILLEGAL ACTS…………...……......3
1.4. KNOWLEDGE OF ALL THE DETAILS OF CONSPIRACY NOT
NECESSARY……………………………………………………………………..4
2. THE ACCUSED HAVE COMMITTED THE OFFENCE OF OBSCENITY UNDER SECTION 292 OF
I.P.C. AND SECTION 3 OF THE INDECENT REPRESENTATION OF WOMEN (PROHIBITION)
ACT, 1986………………………...………………………………………………………....5
2.1 THE COURT CAN ALTER OR ADD ANY CHARGE AT ANY TIME BEFORE JUDGMENT IS
PRONOUNCED………………………………………………………………..………....5
III
2.2 THE ACCUSED HAVE COMMITTED THE OFFENCE UNDER SECTION 292 OF I.P.C.....….6
2.3 THE ACCUSED HAVE COMMITTED AN OFFENCE UNDER SECTION 3 OF THE INDECENT
REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986 ………………….…….…..….7
3. THAT THE ACCUSED MR. SABA, MR. JAIMIL AND MR. PANNA BOY ARE LIABLE FOR
DEFAMATION AS UNDER SECTION 502 OF THE I.P.C. 1860……………………...………...9
3.1 THE ACCUSED ARE LIABLE TO BE PUNISHED UNDER SECTION 502 OF THE I.P.C.,
1860…………………………………………………………………………….....9
4. MR. PANNA BOY HAS VIOLATED THE TERMS OF HIS PAROLE AND IS HENCE LIABLE TO BE
PUNISHED UNDER SECTION 51B OF THE PRISONS ACT, 1897 (MAHARASHTRA
AMENDMENT)…………………………………………………………………………....…..10
4.1 THE GROUND’S PRESENTED FOR PAROLE WERE FALSE.………………………...10
5. THE ACCUSED ATTEMPTED TO COMMIT THE CRIME OF EXTORTION PUNISHABLE UNDER
SEC. 385 OF I.P.C., 1860…………………………………………………………………..12
5.1 THERE WAS AN ATTEMPT TO COMMIT EXTORTION BY THE
ACCUSED………………………………………………………………….12
5.2 THE ACCUSED HAD BOTH MOTIVE AND OPPORTUNITY. ….………………..13
5.3 THAT ALL THE ACCUSED BE TRIED FOR THE SAME OFFENCE. ….……...…..14
PRAYER…………………………………………………………………………………….16
IV
III
INDEX OF AUTHORITIES
STATUTES-
CODE OF CRIMINAL PROCEDURE, 1973
INDIAN PENAL CODE, 1860
THE INDIA EVIDENCE ACT, 1872
INDECENT REPRESENTATION OF WOMEN ACT, 1986
LIST OF CASES- PAGE NO.
1. Ajay Agarwal Vs. Union of India and Ors, 1993 AIR 1637, 1993 SCR (3) 543………. 1
2. Ajay Gowswami vs. UOI, AIR 2007 SC 493………………………………...………… 7
3. B. G. Barsay v. The State of Bombay, (1962) 2 SCR……………………..…….……… 3
4. Biram Lal v Stata of Rajasthan, RLW 2007 1 Raj 713…………………..…………….. 13
5. Brathi vs State of Punjab, (1991) 1 SCC 519……………………………..……………. 15
6. Dalmia RK v. Delhi Adm, AIR 1962 SC 1821……………………………..…………… 4
7. Devender Pal Sing v. State (NCT of Delhi), AIR 2003 SC 1661……………..……...….. 1
8. Dhananjay vs State of Bihar, (2007) 14 SCC 768………………………………….…… 12
9. Fatma Bibi Ahmed Patel v. State of Gujarat & Anr, (2008) 6 SCC789…………….…… 1
10. Ferozuddin Basheeruddin vs State of Kerala, (2001) 7 SCC 596………………………. 14
11. Gulabchand vs State of MP, 1982 Cri LJ 665 (M.P). …………………………………... 13
12. In Re; Abdur Rehman and Keramat vs Unknown, (1900) 27 Cal 839 (FB)…………… 5
13. Indrasena kaur v Sia ram Pandey, 1970 Cri Lj 647……………………………...……… 13
14. Jeffrey J. Diermeier vs. State of WB, (2010) 6 SCC 243……………………………….. 9
15. Jogender @ Pahalwan V. State, Crl.A.Nos.710/2008, 717/2008, 967/2008 &
995/2008………………………………………………………………………………….. 4
IV
16. K.B. Subrahamanyam vs State of A.P., (1993) 2 SCC 684…………………………...…14
V
17. Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883…………………..……4
18. Krishna Nair v. State; 1983 CrLJ 87……………………………………………..……… 10
19. Kuldeep Singh vs State of Rajasthan, AIR 2000 SCC 3649…………………………..… 14
20. M.F. Hussain vs. Rajkumar Pandey, [2008 CriLJ 4107 (Del)]……………………..…….. 6
21. Manikalaya Rao v M. Narasimswai, (1996) 1 SCR 628………………………..…… 12, 15
22. Manikyala Rao vs State of A.P, (2003) 12 SC 306………………………………...…… 14
23. Mohammed Usman. Mohammad Hussain Manivar & Anr. v. State of Maharashtra, (1981) 3 SCR 68……………………………………………………………………..…… 4
24. Mohan Singh vs. State of Bihar, (2011) 9 SCC 272………………………………....….. 12
25. Mohd Khalid vs. State of West Bengal, (2002 Law Suit SC 826)…………………..……. 1
26. Mulcahy v. Reg, (1868) L.R. 3 H.L. 306………………………………………………..... 1
27. Naroda Patiya Case, Sessions Case Nos.235/09, 236/09, 241/09, 242/09, 243/09, 245/09, 246/09 & 270/09………………………………………………….…………………….… 2
28. Noor Mohammed Yusuf Momin v. State of Maharashtra, (1971) 1 SCR 119………...…. 4
29. Pershadi vs State of U.P, AIR 1957 SC 211……………………………………….……. 14
30. Quinn v. Leathem, 1901 AC 495 at 528……………………………………..…………… 1
31. Ramlal vs State of Maharashtra, AIR 1971 SCC 1112……………………………….…. 15
32. Ranjeed D. Udeshi vs State of Maharashtra, (1965) 1 SCR 65 SC………………………. 6
33. S. Rao vs State of A.P., 1995 SCC (Cri) 127…………………………………………… 14
34. S. Sant Singh @ Pilli Singh vs Secretary, Home Department; 2006 CriLJ 1515………. 10
35. Samarash bose vs Amal Mitra (1985) 4 SCC 289…………………………………..…. 6,8
36. Shivanarayan Laxminarayan & Ors. State of Mahrashtra & Ors., (1980) 2 SCC 465…… 4
37. Shri Chandrakant Kalyandas Kakodkar v. The State of Maharashtra and Ors., 1970 CriLJ 1273……………………………………………………………………………..……….. 8
38. State of Maharashtra & Ors. v. Som Nath Thapa & Ors, (1996) 4 SCC 659………...….. 2
VI
39. State of Maharashtra v. Salman Khan, (2004) SCC 1189…………………………..…… 5
40. State of Maharashtra vs. Bharat Raghani, 2002 Cr.L.J. 944 (SC)………………………. 15
V 41. State of Tripura vs. Province of East Bengal; AIR 1951 SC 23…………………...……. 13
42. State v. Nalini, AIR 1999 SC 2640……………………………………………………….. 4
43. Sujoy Kumar Chanda Vs. Damayanti Majhi, 1997 4 SCC 650…………………………. 15
44. Sunil Fulchand Shah vs. UOI, (2000) S.C.C. (Cri.) 659……………………………...…. 10
45. Suo Moto vs. State of Rajasthan and ors, AIR 2005 RJ 300……………...……………… 7
46. T J Edward v. CA Victor Immanuel, 2002 Cri.L.J. 1670 (Ker)……………….…………. 5
47. Tanumal Udham Singh vs Empror, AIR 1944 Sin 203………………………….……… 12
48. Udaipal Singh vs. State of U.P, (1972) 4 SCC 142…………………………………...… 14
49. Yashpal v. State of Punjab, (1977) SCR 2433……………………………………..…….. 4
50. Yogesh vs. State of Maharashtra, (2008) 10 SCC 394……………………….…………. 14 BOOKS/ MANUALS/ DIGESTS AND OTHER RECOGNISED TEXTS • Gaur, K. D., A Textbook on the Indian Penal Code, 3rd. Ed., 2004
• Ratanlal And Dhirajlal, The Indian Penal Code, 28th Ed., 2002
• D.D.Basu, Criminal Procedure Code, 1973, 4th Ed. 2010
VII
STATEMENT OF JURISDICTION
1. Section 177 of the Code of Criminal Procedure states that “Every offence shall ordinarily
be inquired into and tried by a Court within whose local jurisdiction it was committed”.
2. Section 193 of the Code of Criminal Procedure states that, “Except as otherwise expressly
provided by this Code or by any other law for the time being in force, no Court of Session
shall take cognizance of any offence as a court of original jurisdiction unless the case has
been committed to it by a Magistrate under this code.” Hence in the instant case as per the
facts mentioned, the Magistrate Court has referred the instant case to the Court of Sessions in
Bambi, Thane, hence this Court has the requisite jurisdiction to try the instant case.
3. Section 209 of the Code of Criminal procedure states that, “When in a case instituted on a
police report or otherwise, the accused appeared or is brought before the Magistrate and it
appears to the Magistrate that the offence is triable exclusively by the Court of Session;” he
shall commit it to the Court of Session. Thus this case is tried at the Court of Session on
being committed to it by the Magistrate and thus has the requisite jurisdiction.
4. Section 199(1) of the Code of Criminal Procedure states that, “No court shall take
cognizance of an offence punishable under Chapter XXI of the Barata Penal Code (45 of
1860) expect upon a complaint made by some person aggrieved by the offence” Here in the
instant case a complaint was filed by the aggrieved party, hence, this court has the requisite
jurisdiction.
VIII
STATEMENT OF FACTS
1. In March 2013, the Supreme Court of Barata held Mr. Panna Boy an actor guilty under
the provision of Terrorist and Disruptive Act (TADA) for illegal possession of arms and
sentenced him to 5 years rigorous imprisonment under Arms Act, 1959.
2. One of Mr. Panna Boy’s movies “Hit Factory” had been left midway due to his arrest and
conviction. A few scenes were left to be shot. These were intimate scenes for which the
heroine Ms. Naika had declined due to Mr. Panna’s conviction and due to the improper
nature of the scenes. On 14 August 2013 Mr. Jaimil along with Mr. Saba met Ms. Naika
at her residence demanding cooperation for completing the remaining scenes. Ms. Naika
categorically refused and ordered them and when they showed resistance she requested
her security guard to show the visitors the door.
3. Mr. Panna was allowed parole for a month during December 2013, citing his wife’s ill
health and to take care of his daughter. Within two months i.e. in February, he again
applied for parole citing his wife’s ill health that needed constant care. He was granted
parole for another month on February 03, 2014. Meanwhile, Mr. Panna was seen in a
room of the Star Hospital where the cast, crew and director of the movie “Hit Factory”
were already present under some pretence.
4. On 14 Feb 2014 there appeared advertisements in all major newspaper that “Hit Factory”
was releasing. Hearing which Ms. Naika filed a law suit for permanent injunction against
the release of such movie. She received threats of dire consequences if she didn’t
withdraw such complaint. Harassed, she filed a criminal complaint in the Bambi Central
police station against Mr. Saba, and Mr. Jaimil and named Hero Panna as a co-conspirator
alleging defamation. Mr. Panna’s parole was cancelled and he was sent back to prison.
Mr. Saba and Mr. Jaimil were arrested for engaging in prohibited activity with a convict.
The Magistrate committed the case to the Court of Sessions, which after complying with
the statutory requirements, has framed charges against the accused.
IX
STATEMENT OF CHARGES
Following are the charges against the accused –
a. Mr. Panan Boy – Under sections 120B read 34, 227, 501 and 502 of B.P.C.1
b. Mr. Saba – under sections 120B read with 34, 385, 501 and 502 of B.P.C.
c. Mr. Jaimil – under sections 120B read with 34, 385, 501 and 502 of B.P.C.
The Laws of Barata are pari materia to the Laws of India. It is assumed that State of Bambi
has adopted the “Model Prison Manual for the Superintendence and Management of Prisons
in India” prepared by Bureau of Police Research and Development Ministry of Home Affairs,
Government of India, New Delhi 2003 as its Central Prison Manual. Hitherto State of Bambi
had followed “Bambi Prison Manual” which is similar to “Maharashtra Prison Manual,
1979”.
1 Bambi Penal Code
X
SUMMARY OF ARGUMENTS
I. THAT ALL THE ACCUSED WERE PART OF A CRIMINAL CONSPIRACY AGAINST MISS
NAIKA.
That the accused were part of a criminal conspiracy to defame Miss Naika. The said
conspiracy was illegal which is obvious from the chain of events, which were all part of
the same transaction.
II. THAT ALL THE ACCUSED ARE LIABLE TO BE CHARGED UNDER SECTION 292 OF IPC
AND SECTION 3 OF INDECENT REPRESENTATION OF WOMEN ACT.
Section 216 of Cr.P.C. gives a right to the court to alter or add any charge at any stage
during the trial. Due to the facts and circumstances of the case at hand, an addition of
charges is sought. The charges pleaded to be introduced are Section 292 of IPC, dealing
with obscenity and Section 3 of the IRW (Prevention) Act.
III. THAT THE ACCUSED ARE LIABLE FOR DEFAMATION
That the act of the accused clearly falls within the ambit of Section 502 of the I.P.C.
The posters published of “hit “factory’, show Miss Naika’s lookalike in a semi-nude
posture with a convicted terrorist. This has been done without clarifying that a body
double was used and is therefore defamatory.
IV. THAT THE ACCUSED ARE LIABLE FOR THE OFFENCE OF ATTEMPT TO EXTORTION.
Under Section 216 Cr.P.C. an addition of the charge of extortion on Panna Boy is
sought. The reason being that he was a part of the whole conspiracy and should be
therefore liable for the same. Additionally, the accused had motive and opportunity to
commit the crime.
XI
V. THAT THE ACCUSED IS PUNISHABLE IN SEC. 227 OF THE IPC AND UNDER SECTION
51B OF PRISONS ACT (MAHARASHTRA AMENDMENT) ACT, 1894.
That remission and parole are forms of temporary release and Panna Boy, having
violated the terms of his release, is liable to be sent back to jail to complete the
remainder of his sentence and undergo further imprisonment of upto two years.
XII
WRITTEN SUBMISSIONS
________________________________
1. MR. PANNA BOY, MR. SABA AND MR. JAIMIL WERE INVOLVED IN CRIMINAL
CONSPIRACY AGAINST MS. NAIKA.
Section 120B of the Barata Penal Code (hereinafter referred to as the I.P.C.) prescribes
punishment for criminal conspiracy. A conspiracy consists not merely in the intention of two
or more, but in the agreement of two or more persons to do an unlawful act, or to do a lawful
act by unlawful means.2 When two or more persons agree to carry such act into effect, the
very plot is an act in itself, and the act of each of the parties, promise against promise, actus
contra actum3, capable of being enforced, if lawful, is punishable for a criminal object or for
the use of criminal means.4
1.1 ALL THE ACCUSED SHARED THE SAME OBJECT OF COMPLETING THE MOVIE BY
ADOPTING ANY MEANS POSSIBLE
The elements of a criminal conspiracy have been stated to be5: an object to be accomplished,
a plan or scheme embodying means to accomplish that object, an agreement or understanding
between two or more of the accused persons whereby they become definitely committed to
2 Section 120A of the Barata Penal Code, 1908.
3 A contract is an act as it were against an act.
4 Fatma Bibi Ahmed Patel v. State of Gujarat & Anr; 2008(6)SCC789; Quinn v. Leathem; 1901 AC 495 at 528; Mulcahy v. Reg (1868) L.R. 3 H.L. 306; Ajay Agarwal Vs. Union of India and Ors; 1993 AIR 1637, 1993 SCR (3) 543.
5 Mohd Khalid vs State of West Bengal; (2002 SC 826).
XIII
cooperate for the accomplishment of the object by the means embodied in the agreement, or
by any effectual and plausible means.6
In the instant case Mr. Panna, Mr. Saba and Mr. Jaimil had a common object of completing
the movie at any cost. The facts are clear on this point that Mr. Saba had borrowed heavily
and had invested a lot of money on Ms. Naika.7 There was a huge amount of pressure exerted
on Mr. Saba by his bankers and creditors to refund the money.8 Mr. Panna had also received
huge advances from the producer.9 This whole thing compelled all of them to complete the
movie as soon as possible.
1.2 THE CHAIN OF EVENTS THAT OCCURRED WERE ALL PART OF THE SAME TRANSACTION
The circumstances asserted before, during and after the occurrence have to be considered to
decide about the complicity of the accused.10 Further, the actus reus in a conspiracy is the
agreement to execute the illegal conduct, not the execution of it.11
Furthermore, the Supreme Court has observed that for a person to conspire with another, he
must have knowledge of what the co-conspirators wanted to achieve and thereafter having the
intent to further the illegal act takes recourse to a course of conduct to achieve the illegal end
or facilitate its accomplishment.12
In the instant case it is evident from the facts that all of the accused were involved in a series
of events that were either illegal or against the law to attain the sole object of completing the
6 Ibid; Devender Pal Singh v. State (NCT of Delhi); AIR 2003 SC 1661, (2003) 5 SCC 234.
7 ¶ 5 of the moot proposition.
8 ¶ 6 of the moot proposition.
9 ¶ 5 of the moot proposition.
10 Order of the Naroda Patiya Case, Sessions Case Nos.235/09, 236/09, 241/09, 242/09, 243/09, 245/09, 246/09 & 270/09.
11 Ibid ; Halsbury’s Laws of England (vide 4th ed., Vol. 11, p. 44, p. 58).
12 State of Maharashtra & Ors. V. Som Nath Thapa & Ors. (1996) 4 SCC 659
XIV
movie as soon as possible. Instances like Mr. Panna coming out of the jail on parole13, Mr.
Jaimil and wife of Mr. Panna both admitted in the Star Hospital14, shooting of the unnamed
serial comprising of same set of actors and actresses as that of Hit Factory in the vicinity of
the Hospital15 and at the Mall16 also, release of advertisements and posters of the Movie
depicting Ms. Naika in a compromising position with Mr. Panna17, which was against her
express wishes. Further Ms. Naika receiving a couple of calls from an unknown number
threatening her to withdraw her suit18 from the High Court of Bambi filed for permanent
injunction on the release of the movie.
1.3 ACT OF MR. PANNA BOY, MR. SABA AND MR. JAIMIL WAS AN ILLEGAL ACT
The gist of the offence is an agreement to break the law.19 The parties to such an agreement
will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been
done. Also another ingredient of a criminal conspiracy is that all the parties should agree to
do a single illegal act. It may comprise the commission of a number of acts. Under Section 43
of the Barata Penal Code, an act would be illegal if it is an offence or if it is prohibited by
law”.20
In the present case to attain the aim of finishing the movie as soon as possible all the accused
went on to commit a series of illegal acts. First of all getting Panna out of the jail on false
grounds21, then completing the remaining shots of the movie using actress having
13
¶ 8 & 10 of the moot proposition.
14 ¶ 11 & 13 of the moot proposition.
15 ¶14 of the moot proposition.
16 ¶15 of the moot proposition.
17 ¶17 of the moot proposition.
18 ¶18 of the moot proposition.
19 State v. Navjot Sandhu, (2005) 11 SCC 600
20 B. G. Barsay v. The State of Bombay; [1962] 2 SCR at 229.
21 ¶12 of the Report of police officer on completion of investigation (Under Section 173 of Cr.Pc.) filed on 30/03/2014.
XV
resemblance to Ms. Naika, after that releasing full page ads of release of the movie Hit
Factory without the consent of Ms. Naika22, all of which were followed by threatening Ms.
Naika to withdraw the suit against the release of the Movie just on the day she filed the suit in
the HC of Bambi for permanent injunction on the release of the movie.23 The accused went
on to commit a series of illegal acts to finish the movie as soon as possible.
1.4 KNOWLEDGE OF ALL THE DETAILS OF CONSPIRACY NOT NECESSARY
It is not necessary that each conspirator must know all the details of the scheme nor be a
participant at every stage.24 Generally, a conspiracy is hatched in secrecy and it may be
difficult to adduce direct evidence of the same.25 The prosecution will often rely on evidence
of acts of various parties to infer that they were done in reference to their common intention
i.e. circumstantial evidence. The express agreement, however, need not be proved.26 Nor
actual meeting of two persons is necessary. Nor is it necessary to prove the actual words of
communication.27 The evidence as to transmission of thoughts whilst sharing of the unlawful
design may be sufficient.28
It is humbly submitted before the Honorable Court that all the facts and circumstances
corroborating with each other indicate that all the accused acted in collaboration to release the
movie at any cost. And in doing so they adopted a number of illegal acts which amounted to
an offence under section 120A and punishable under section 120B of the I.P.C. 1908.
22
¶17 of the moot proposition.
23 ¶18 of the moot proposition.
24 RK Dalmia v. Delhi Adm; AIR 1962 SC 1821; State v. Nalini; AIR 1999 SC 2640; Yashpal Mittal vs State of Punjab (1977) 4 SCC 540.
25 Shivanarayan Laxminarayan & Ors. State of Mahrashtra & Ors.; (1980) 2 SCC 465.
26 Mohammed Usman. Mohammad Hussain Manivar & Anr. v. State of Maharashtra; (1981) 3 SCR 68.
27 Noor Mohammed Yusuf Momin v. State of Maharashtra; [1971] 1 SCR 119.
28 Kehar Singh v. State (Delhi Administration) AIR 1988 SC 1883; Yashpal Mittal v. State of Punjab (1977) SCR 2433; Jogender alias Pahalwan v. State, Crl.A.Nos.710/2008, 717/2008, 967/2008 & 995/2008.
XVI
_____________________________
2. THE ACCUSED HAVE COMMITTED THE OFFENCE OF OBSCENITY UNDER SECTION 292 OF
IPC AND SECTION 3 OF THE INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT,
1986.
Section 292 of the I.P.C. 1860 defines the offence of obscenity and its punishment. Section 3
and Section 6 of The Indecent Representation of Women (Prohibition) Act, 1986 defines the
offence of indecent representation of a woman and its punishment respectively. It is
contended before this Hon’ble Court that the accused are punishable under both the above
mentioned laws.
2.1 THE COURT CAN ALTER OR ADD ANY CHARGE AT ANY TIME BEFORE JUDGMENT IS
PRONOUNCED
As per the provisions of the Cr.P.C any court may alter or add to any charge at any time
before judgment is pronounced.29 Addition to or alteration of a charge or charges implies
making an addition to or an alteration to one of the existing charge or charges30 For adding a
new charge there must be material before the court either in complaint or in evidence to
justify such action.31 The court may alter or add to the charge at any time before the judgment
is pronounced.32 The court may alter or add to any charge upon its own motion or on
29 Section 216 of the Cr.P.C, 1973.
30 T J Edward v. CA Victor Immanuel, 2002 Cri.L.J. 1670 (Ker).
31 Ibid.
32 State of Maharashtra v. Salman Khan, (2004) SCC 1189.
XVII
application by the prosecution which should be made immediately after the charge is
explained by the Magistrate.33
In the present case, since the accused were also involved in displaying posters of Ms. Naika
in a compromising position with Mr. Panna and also including intimate scenes of her and Mr.
Panna by using a look alike actress in the movie against her express wishes, such activities
amount to an offence for displaying obscene content under section 292 of the I.P.C., 1908 as
well as an offence under the Indecent Representation of Women (Prohibition) Act, 1986.
It is therefore humbly submitted before the Honorable court to add new charges under section
292 of the IPC, 1908 and Section 3 of the Indecent Representation of Women (Prohibition)
Act, 1986.
2.2 THE ACCUSED HAVE COMMITTED THE OFFENCE UNDER SECTION 292 OF IPC.
Section 292 of IPC declares distributing or publicly exhibiting any matter that can be
considered obscene as an offence punishable with imprisonment extending upto 2 years and
fine.34
The Supreme Court in Samarash Bose v. Amal Mitra,35 provides, that to judge whether a
particular content or act amounts to obscenity or not one has to observe from the perspective
of both the author and reader. Nudity is not obscene per se unless/unless it is an incentive to
sensually implore or excite the thoughts in the mind of an ordinary person of normal
temperament.36
The posters released by the accused portray Ms. Naika in a semi nude posture, prominence
being given to intimate scenes in the movie. This shows the intention of the accused to
33 In re: Abdur Rehman and Keramat v. Unknown (1900) 27 Cal 839 (FB).
34 Section 292 IPC, 1860.
35 (1985) 4 SCC 289.
36 Ranjeed D. Udeshi vs State of Maharashtra, 1965 1 SCR 65 SC.
XVIII
present it as an enticement to sensuality or a means to implore perversion. Since, Ms. Naika
had already refused to be involved in any kind of intimate scenes in the movie showing her in
such a compromising position, it is clear that this was done against her express wishes. Such
an act which can be said to appeal to unhealthy, inordinate person having perverted interest in
sexual matters or having a tendency to morally corrupt and debase persons likely to come in
contact with such posters amounts to obscenity under section 292 of I.P.C.37 Hence it is clear
that the posters38 are obscene in nature and proves that the accused persons had full
knowledge of this obscenity.
It is contended before the Hon’ble court that not only the poster is obscene but the act of
using a look alike actress to depict Ms. Naika is obscenity against her under this section39.
2.3 THE ACCUSED HAVE COMMITTED AN OFFENCE UNDER SECTION 3 OF THE INDECENT
REPRESENTATION OF WOMEN (PROHIBITION) ACT, 198640
.
As per Section 3 of Indecent Representation of Women Act, any person who publishes or
causes to publish any advertisement which contains indecent representation of women in any
form shall be punished with imprisonment of for a term which may extend to two years and
with fine which may extend to Rupees Two thousand.
The present case is with regard to the depiction of Ms. Naika in an undignified manner by the
accused persons by using illegal means and against her express wishes which also amounts to
defamation. The Rajasthan High court in a suo moto case held that the posters of ‘A’
certificate films be prepared and displayed in a more healthy and less revealing manner. 41 It
is clear from even the cursory look of posters that they portray Ms. Naika in a derogatory
37 M.F. Hussain vs Rajkumar Pandey; 2008 CrLJ 4107 (Del).
38 Annexure 5 of the Problem.
39 Sec 292 of the I.P.C., 1860.
40 Hereinafter referred to as the I.R.W. Act.
41 Suo Moto vs State of Rajasthan and ors; AIR 2005 RJ 300.
XIX
manner. 42 Such depiction of woman is covered by Section 3 of I.R.W. Act43 and is
punishable under Section 6 of the Act.
a. There has been a gross violation of Ms. Naika’s right to her own space
In Ajay Gowswami vs. Union of India, it was held that an individual also has right to their
own space and right not to be exposed against their will to other's expressions of ideas and
actions. 44 It was also held that publishing as well as circulating of obscene and nude/semi-
nude photographs of women constitutes a penal offence under the provisions of the I.R.W.
Act, 1986. Thus, it is asserted that depiction of Ms Naika in the movie posters is gross and
obscene and it is likely to deprave and corrupt those, whose minds are open to influence45.
It is therefore obvious that the publication made by Mr. Saba, Mr. Jaimil and Mr. Panna Boy
meant merely to make money by titillating the audience amongst whom it is circulated
through its vulgar sexual appeal. The poster is capable of arousing impure and lecherous
thoughts in the minds of persons who will see it which satisfies the conditions precedent for
obscenity as laid down by the apex Court.46 Hence, it is contended that the accused persons
have committed an offence under Section 3 of I.R.W. Act which is punishable under Section
6 of the Act.
42 Annexure 5 of the Problem.
43 Supra 39.
44 AIR 2007 SC 493.
45 Supra 33.
46 Shri Chandrakant Kalyandas Kakodkar v. The State of Maharashtra and Ors.; 1970 CriLJ 1273.
XX
________________________________
3. THAT THE ACCUSED MR. SABA, MR. JAIMIL AND MR. PANNA BOY ARE LIABLE FOR
DEFAMATION AS UNDER SECTION 502 OF THE I.P.C. 1860
Section 499 of I.P.C. 1860 specifies the substantial requirements for defamatory. Section 502
provides that whoever sells of offers for sale any printed or engraved substance containing
defamatory matter knowing that it contains such matter, shall be punished with simple
imprisonment for a term which may extend to two years, or with fine or both.
3.1 THE ACCUSED ARE LIABLE TO BE PUNISHED UNDER SECTION 502 OF THE I.P.C., 1860
Under Section 502 of the I.P.C., provides for the punishment for publishing defamatory
matter. This section has two essentials, i.e. selling or offering for sale any printed or engraved
substance and knowledge that such substance contains defamatory matter. It has already been
proved that the full page ads of the movie “Hit Factory” published in popular newspaper and
magazines portrays Ms. Naika in an obscene and indecent manner. It is therefore contended
that all these essentials of Section 502 are satisfied and hence the accused are liable for
defamation
a. Accused had all the reason to believe that their act will harm Ms. Naika’s repute.
The intention of harming or knowing or having reason to believe that it will harm the
reputation of the person about whom it is made the offence of defamation is the harm caused
to the reputation of a person, it would be sufficient to show that the accused persons intended
or knew or had reason to believe that the imputation made by them would harm the reputation
of the complainant, irrespective of whether the complainant actually suffered directly or
indirectly from the imputation alleged.47
47 Jeffrey J. Diermeier vs. State of WB; (2010) 6 SCC 243.
XXI
_________________________ 4. MR. PANNA BOY HAS VIOLATED THE TERMS OF HIS PAROLE AND IS HENCE LIABLE
TO BE PUNISHED UNDER SECTION 51B OF THE PRISONS ACT, 1897 (MAHARASHTRA
AMENDMENT)
__________________________________________________
Section 51B of the Prisons Act, 1897 (Maharashtra Amendment) provides for the punishment
to be given in cases of violation of the conditions of parole or furlough. The said punishment
comprises of sending the prisoners so released, back to jail, for the remainder of his original
sentence and such person would be awarded an additional punishment for a term of upto two
years or a fine of Rupees One Thousand or both. 48
4.1 THE GROUND’S PRESENTED FOR PAROLE WERE FALSE.
Prisoners who apply for parole on false grounds or who, abuse the concession or commit
breach of any of the conditions of parole are liable to be punished under Section 51B of the
Prisons Act, 1894, as applicable to the State of Bombay49.
Parole was sought on the ground of the prisoner’s wife being seriously ill and his daughter
being in need of parental care. It is however hard to believe that person belonging to a
financially well off family having strong political contacts would not have someone taking
appropriate care of his wife. As per the parental care of the child she was regularly put under
the charge of her nanny, as is evident by the factsheet.50 Further in support of the
circumstances of the case, the Bombay High Court upheld the decision of rejecting parole on
48 Krishna Nair v. State; 1983 CrLJ 87.
49 S. Sant Singh @ Pilli Singh vs Secretary, Home Department; Bom. H.C. 2006 CriLJ 1515. 50 ¶ 8 of factsheet.
XXII
the ground that there are other relatives to take care of his ailing wife and hence the presence
of the petitioner was not required.51
Even though the release sought was on the ground of the wife being ill, Mr. Panna Boy, as
per the fact sheet was busy in finishing off the movie “Hit Factory”. It is therefore contended
that the ground on which temporary release was granted, was false and mala fide and it
makes it very evident from the facts that the true motive of parole was the completion of the
movie.
It is therefore contended that the accused Mr. Panna Boy is to be held guilty under Section
51B of the Prisons Act. 1894 (Maharashtra Amendment) for filing false grounds for parole
and for violating conditions precedent while in parole.
51 Supra 48.
XXIII
_________________________
5. THE ACCUSED ATTEMPTED TO COMMIT THE CRIME OF EXTORTION PUNISHABLE UNDER
SEC. 385 OF I.P.C., 1860
___________________________________________________________________________
Section 385 of IPC provides the punishment for an attempt of extortion. The word ‘attempt’
clearly implies that the offence is not complete, and the attempt to commit the offence has
failed. All the accused shared a common intention, that being of finishing the movie. The
attempt was to make her forego her legal right to sue. Such attempt accrues when there is an
attempt by the defendant to infringe it.52
5.1 THERE WAS AN ATTEMPT TO COMMIT EXTORTION BY THE ACCUSED
Extortion is defined in Section 383 of the Barata Penal Code.53 The essence of the offence of
extortion is that a person must be put in fear of injury, and be dishonestly induced to deliver
property. 54
That the offence under 385 of the Barata Penal Code is one where three basic facts need to be
established:
a. That the accused put the complainant in fear.
That it can be observed form Annexure 4 of the Charge sheet that threatening calls had been
placed to the aggrieved party. In the present case an implied threat had been made regarding
the family of the accused. Threats made upon the family of a person are extortionate in
nature.55 The injury threatened is undoubtedly one which can be committed by the accused.56
52 Manikalaya Rao v M. Narasimswai; (1996) 1 SCR 628.
53 Section 385 Barata Penal Code, 1860.
54 Dhananjay vs State of Bihar; (2007) 14 SCC 768.
55 Mohan Singh vs State of Bihar; 2011 9 SCC 272.
XXIV
b. That the fear was regarding some injury
Injury denotes any harm whatever illegally caused to any person in body, mind or
reputation.57 The present case clearly falls within the aforementioned definition. The threat
made was one where injury was threatened to the body of the aggrieved party and to her near
and dear ones. The ‘injury’ thus caused is clearly an actionable wrong. 58
c. That the accused did as above to commit extortion.
That there is a condition held to be sine qua non for conviction under this section. The
condition being that the court must be satisfied that the putting in fear was with the intention
of extorting delivery of some property. 59It has been held that case that something which
helps a person reasonable hope or expectation of collecting substantial amount of money is
property. 60
Had an injunction been granted by the Honorable High Court it would have led to great
financial loss for Accused number 1 & 2. Therefore, threat to withdraw the injunction appeal
had been given.61 If the film had been released as planned it would have led to profit to the
producer and director of the movie.
The act of the wrongdoers even if unsuccessful would be held as extortion.62 The act would
remain only at the stage of attempt to commit extortion. The offence of attempt to commit
extortion is clearly made out.’
56 Tanumal Udhai Singh v. Emperor; AIR 1944 Sin 203.
57 Section 44 of I.P.C, 1860.
58 State of Tripura v. Province of East Bengal; AIR 1951 SC 23.
59 Indrasena Kaur v. Siaram Pandey; 1970 Cri Lj 647.
60 Gulabchand v. State of MP 1982 Cri LJ 665 (M.P).
61 ¶18 of factsheet.
62 Biram Lal v. State of Rajasthan; RLW 2007 1 Raj 713.
XXV
5.2 THE ACCUSED HAD BOTH MOTIVE AND OPPORTUNITY.
The present case involves the offence of criminal conspiracy. The word ‘conspiracy’ can be
understood to be a private activity between two or more people. It can be inferred even from
circumstances to give rise a conclusive or irresistible inference.63 Therefore, the help of
circumstantial evidence becomes necessary because a conspiracy is always hatched in
secrecy.64 In such cases circumstantial evidence needs to be depended upon. And in cases of
circumstantial evidence, motive assumes considerable importance.65 Motive to commit a
crime in such cases is an enlightening factor, which aids in the process of presumptive
reasoning. 66 It is also pertinent to note that the accused, had access to the aggrieved party
which provided it with the opportunity to commit the crime of extortion.67
Herein, it is asserted that due to delay in the shooting “Hit Factory” accused 2 was in huge
pressure from banks and creditors he had to repay. If the movie hit factory did not release Mr.
Saba would be in huge loss financially. If the accused had both motive and opportunity and
that the circumstances of the case offer no other explanation but the guilt of the accused, then
the accused may be convicted.68
5.3 THAT ALL THE ACCUSED BE TRIED FOR THE SAME OFFENCE.
The present case is one where the prosecution would move for an addition of charge pursuant
to Section 216 of the Cr.P.C. The said charge is sought to be added, it is clear from the facts
on hand that Mr. Panna Boy was a part of a criminal conspiracy to finish the movie by any
means, even if it meant involving gangsters to get funding for completing the movie. A
conspirator can be held liable for crimes committed by co-conspirators in furtherance of 63 Kuldeep Singh vs State of Rajasthan; AIR 2000 SCC 3649.
64 Yogesh vs State of Maharashtra; 2008 10 SCC 394.
65 S. Rao vs State of A.P; 1995 SCC (Cri) 127.
66 K.B. Subrahamanyam vs State of A.P;. (1993) 2 SCC 684.
67 Pershadi vs State of U.P; AIR 1957 SC 211.
68 Udaipal Singh vs State of U.P; (!972) 4 SCC 142.
XXVI
objectives of conspiracy,69 even if he played no direct part it. 70 The act of furtherance can be
defined as the ‘act of moving forward’ or as ‘advancement or promotion’71. The
circumstances show that the accused had planned the move beforehand. Common Intention
requires a prearranged plan and therefore there must be a prior meeting of minds. 72 Even
though accused number 3 may or may not be a direct party to the crime, but sharing common
intention with others, he too committed the crime of extortion. 73
The common intention as highlighted earlier is the completion of the movie. That the
circumstances of the case wherein Mr. Panna Boy’s wife gets conveniently admitted to a
hospital where movie shootings are done. Even more coincidentally the movie in question
had hospital scenes remaining to be shot too. Not only this, the director too gets himself
admitted the same day. That Mr. Panna Boy had foreknowledge of the events is displayed by
his timely release on parole. If common intention leads to commission of the criminal offence
charged then each person sharing the common intention is constructively liable for the
offence74. Therefore he did an act in furtherance of common intention of the crime being
committed.
69 Ferozuddin Basheeruddin vs State of Kerala 2001 (7) SCC 596.
70 Sujoy Kumar Chand v. Damayanti Majhi; 1997 (4) SCC 650.
71 Supra 50.
72Ramlal vs State of Maharashtra; AIR 1971 SCC 1112.
73State of Maharashtra vs Bharat Raghani; 2002 Cri LJ 944 (SC).
74Brathi vs State of Punjab (1991) 1 SCC 519.
XXVII
PRAYER FOR RELIEF
Wherefore in the light of the facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed that this Court of Sessions be pleased to adjudge and
declare that:
1. That the accused are guilty of the offence of criminal conspiracy which is punishable
under Section 120B of the I.P.C.
2. That the accused persons have committed an offence under Section 3 of Indecent
Representation of Women Act, punishable under Section 6 of the Act.
3. That the accused are guilty under Section 502 of the Barata Penal Code, 1860, for the
offence of defamation.
4. That the accused be charged and punished for conspiring to commit extortion,
punishable under section 385 of the Barata Penal Code, 1860.
5. That the accused Mr. Panna Boy is guilty under Section 51B of the Prison’s Act, 1894
(Maharashtra Amendment), for violation of terms of parole and for providing false
grounds for parole.
The Court may pass any other order that it deems fit in the interest of justice, equity and
good conscience.
For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.
Date: S/d ……………
Place: Bambi, Thane (Counsel on behalf of the
Prosecution)