IN THE COURT OF SESSIONS, BAMBI THANE

Transcription

1 Team Code: IN THE COURT OF SESSIONS, BAMBI THANE S. C. No. 123 of 2014 UNDER SECTION 177 R.W.S. 193, 199(1) & 323 OF THE Cr.P.C. STATE OF BAMBI PROSECUTION VERSUS PANNA, SABA & JAIMIL DEFENCE WRITTEN SUBMISSIONS ON BEHALF OF THE DEFENCE SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION-2014

2 TABLE OF CONTENTS TABLE OF CONTENTS... II INDEX OF AUTHORITIES... IV STATEMENT OF JURISDICTION... VII STATEMENT OF FACTS... VIII STATEMENT OF CHARGES... IX SUMMARY OF ARGUMENTS... X ARGUMENTS ADVANCED... 1 I. THAT THE CHAIN OF CIRCUMSTANCES FROM WHICH AN INFERENCE AS TO THE GUILT IS DRAWN IS NOT CLOSELY KNIT II. THAT MR. SABA, MR. JAIMIL AND MR. PANNA BOY ARE NOT LIABLE FOR CRIMINAL CONSPIRACY A. That there was no common intention under Section 34 of the I.P.C i. That the ingredients of common intention are not satisfied ii. That the pre-arranged plan has to be established by the prosecution iii. That the guilt is not proved by the conduct of the accused B. That there is no criminal conspiracy in the instant case III. THAT THE CHARGES HAVE BEEN WRONGLY FRAMED BY THE COURT OF SESSIONS, BAMBI THANE A. That Mr. Panna Boy cannot be tried under Section 227 of the I.P.C i. That parole does not amount to remission of sentence ii. That the violation of condition for remission does not arise B. That Mr. Saba and Mr. Jaimil cannot be held liable under Section 385 of the I.P.C., II

3 i. That the pre-requisites of extortion are not satisfied IV. THAT THE ACCUSED ARE NOT LIABLE FOR DEFAMATORY PUBLICATION UNDER SECTION 501 AND 502 OF THE I.P.C A. That there was no intention or prior knowledge to cause harm to Ms. Naika B. That there is no good reason to believe that the accused published matter for defamation PRAYER... XII III

4 INDEX OF AUTHORITIES INDIAN CASES A. Jayaram and Anr. v. State of AP, AIR 1995 SC Ashok Kumar Jain and Ors v. State of Maharashtra & Anr., MANU/MH/0017/ Chandrakant Murgyappa Umrani v. State of Madhya Pradesh, AIR 1999 SC Dadu Tulsidas v. State of Maharashtra, (2000) 8 SCC Devi Lal & Anr. v. The State of Rajasthan, AIR 1971 SC Dr. Radhanath Rath and Anr. v. Biraja Prasad Ray, 1992 Cri.L.J Ganga Ram Kondiba Ingle Etc. v. State of Maharshtra, 2000 Cr.L.J. 336 (Bom)... 6 Harbans Singh v. State of Rajasthan and Anr., 1998 Cri.L.J Harendra Narain Singh v. State of Bihar, AIR 1991 SC Janar Lal Das v. State of Orissa, 1991 (3) SCC Karmat Ali and Ors. v. State of Assam, AIR 1978 SC Mahmood v. State of U.P., AIR 1976 SC Mantri Mattapalli v. Narasimha Rao, AIR 1919 Mad Mohan Lal v. State of Uttar Pradesh, AIR 1974 SC Mukha Singh and Anr. v. State of Rajasthan, 1976 Cr.L.J. 457 (Raj)... 3 N. Rajendra v. State, 1996 Cri.L.J. 257 (Kar)... 2 Naran Velji v. Ranjit Jamnadas Kapadia, AIR 1955 Sau IV

5 Nemichand v. Khemraj, AIR 1973 Raj Parichhat v. State of Madhya Pradesh, AIR 1972 SC R.S.Nayak v. A.R Antulay, AIR 1986 SC Radhakishan v. State, 1973 Cr.L.J Radhakrishnan v. State, LW (Crl) Ram Nath Madho Prasad & Ors. v. State of M.P., AIR 1953 SC 420 (424)... 5 S. Sant Pilli Singh v. Secretary, Home Department, Government of Maharashtra and Ors., 2006 Cri.L.J (FB)... 8 Sachin Jana and Ors. v. State of West Bengal, 2008 (2) SCALE 2 SC... 3 State v. Dharanidhar, AIR 1976 Ori Sunil Fulchand Shah v. Union of India &Ors, (2000) 3 SCC Vinay Kr. Rai v. Union of India, (2008) 12 SCC BOOKS J. A. K. NANDI, INDIAN EVIDENCE ACT (6th ed. 2010)... 1 K. D. GAUR, INDIAN PENAL CODE (6th ed. 2006)... 9, 10 R. A. NELSON, INDIAN PENAL CODE (10th ed. 2008)... 3 RAM JETHMALANI, THE LAW OF EVIDENCE (1st ed. 2013)... 1 RATANLAL & DHIRAJLAL, INDIAN PENAL CODE (32nd ed. 2013)... 3, 10 RATANLAL & DHIRAJLAL, LAW OF CRIMES (27 th ed. 2013)... 6 V

6 RATANLAL & DHIRAJLAL, LAW OF EVIDENCE (22nd ed. 2006)... 2 RATANLAL AND DHIRAJLAL, LAW OF CRIMES (27th ed. 2013)... 5 S. C. SARKAR, CODE OF CRIMINAL PROCEDURE (10th ed. 2012)... 7 SOHON, CODE OF CRIMINAL PROCEDURE (5th ed. 2008)... 8 WOODROFF & AMIR ALI, LAW OF EVIDENCE (19th ed. 2012)... 1 LEXICON BLACK S LAW DICTIONARY 1976 (9th ed. 2009)... 7 STATUTES Code of Criminal Procedure, Indian Evidence Act, Indian Penal Code, VI

7 STATEMENT OF JURISDICTION The Prosecution has come before The Court of Sessions, Bambi Thane pursuant to provisions of the Code of Criminal Procedure, which reads as under: Section 177- Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. Section 193- 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. Section 199(1)- No court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860) expect upon a complaint made by some person aggrieved by the offence. Section 323- If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall, commit it to that Court under the provisions hereinbefore contained. Defence humbly submits that this Court has the appropriate jurisdiction to hear the matter and adjudicate accordingly. VII

8 STATEMENT OF FACTS I. Mr. Panna Boy was arrested under the provision of Terrorist and Disruptive Act (TADA) for illegal possession of arms. In March 2013, the Supreme Court held him guilty and sentenced him to 5 years rigorous imprisonment under Arms Act, II. One of Mr. Panna Boy s movies Hit Factory had been left midway due to his arrest and conviction. A few hospital and intimate scenes were left to be shot. The actress, Ms Naika had tacitly made known that she would not associate her name with a criminal. Mr. Panna was allowed parole for a month during December 2013, citing his wife s ill health and to take care of his daughter. III. In February, he was again granted parole. On 5 th Feb Mr. Jaimil along with Mr. Saba met Ms. Naika at her residence demanding cooperation for completing the remaining scenes. Ms. Naika refused them and on resistance, they were shown the doors. However in violation to the terms of his parole he finished the remaining scenes from the Star Hospital where the cast, crew and director were already present. IV. On 14 Feb 2014 there appeared advertisements in all major newspapers that Hit Factory was releasing. A lookalike had been used in Ms. Naika s place. Ms. Naika filed a criminal complaint 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 Hero Panna.The Assistant Commissioner took cognizance of the complaint filed an FIR and ordered for enquiry. VIII

9 STATEMENT OF CHARGES After complying with the statutory requirements, the Court of Sessions framed charges against the accused under Sections: CHARGE 1: Mr. Panna Boy has been charged under Sections 120 B read with 34, 227,501 and 502 of BPC which is analogous to Indian Penal Code, CHARGE 2: Mr. Saba has been charged under Sections 120 B read with 34, 385, 501 and 502 of BPC which is analogous to Indian Penal Code, CHARGE 3: Mr. Jaimil has been charged under Sections 120 B read with 34, 385, 501 and 502 of BPC which is analogous to Indian Penal Code, IX

10 SUMMARY OF ARGUMENTS I. THAT THE CHAIN OF CIRCUMSTANCES FROM WHICH AN INFERENCE AS TO THE GUILT IS DRAWN IS NOT CLOSELY KNIT. It is a well settled principle that where the case is mainly based on circumstantial evidence, the court must satisfy itself that various circumstanced in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. In the instant case, prima facie, chain of circumstances does not link with each other and every instance in itself has multiple hypothesis apart from the hypothesis provided by the prosecution. II. THAT MR. SABA, MR. JAIMIL AND MR. PANNA BOY ARE NOT LIABLE FOR CRIMINAL CONSPIRACY. It is reverentially put forth that the act done by Mr. Panna Boy, Mr. Saba and Mr. Jaimil is not illegal and they cannot be held liable for criminal conspiracy with common intention. The basic requisites of both the Section are not satisfied under the instant case as the act done by the accused does not constitute any crime. Mere presence at the scene of the crime does not bring home the offence but this is a matter of evidence and has to be established by cogent proof. Hence, the presence of accused in the hospital and at mall does not establish the crime and the offence cannot be brought home. III. THAT THE CHARGES HAVE BEEN WRONGLY FRAMED BY THE COURT OF SESSIONS, BAMBI THANE. It is humbly put forth by the defence that the charges on Panna Boy under Section 227 and the charges on Jaimil and Saba under Section 385 have been wrongly framed by the X

11 Court of Sessions. The pre requisites of both the Sections are not satisfied in the instant case and hence the accused cannot be held liable to be charged under these penal provisions. Parole did not amount to the suspension, remission or commutation of sentences and hence, the accused cannot be held liable for violation of condition with respect to remission when he is out on parole. Also, In the instant case, a close perusal of the materials available and facts and circumstances involved clearly reveal that it was not the accused who called as there are no facts or evidence from which the same can be inferred. Moreover, even if the alleged phone calls are presumed to have been made by the accused, no word in the given records of the conversation can be construed to imply a demand from the victim i.e. Ms. Naika for property, valuable security or anything sealed which can converted into the same. The only inference that can be drawn from the conversation in hand is that the calls were made for either seeking cooperation in the completion of the movie or for the release of the movie in dispute. Therefore the accused cannot be convicted under this section. IV. THAT THE ACCUSED ARE NOT LIABLE FOR DEFAMATORY PUBLICATION UNDER SECTION 501 AND 502 OF THE I.P.C. It is humbly contended by the defence that the offences against the accused under Section 501 and 502 cannot be brought home. In the instant case, Mr. Jaimil and Mr. Saba had no ill will against Ms. Naika. The advertisements in popular newspapers and magazines were published with the bonafide intention of publicizing and promoting the film so as to draw public attention towards the same. The accused printed the posters of the movie for which they had all the rights being the director and producer of the movie. This right cannot be fettered by any public statement made by the actress against the movie or her participation in that movie and the matter cannot be considered defamatory for the same reason. XI

12 ARGUMENTS ADVANCED I. THAT THE CHAIN OF CIRCUMSTANCES FROM WHICH AN INFERENCE AS TO THE GUILT IS DRAWN IS NOT CLOSELY KNIT. It is a well settled principle that where the case is mainly based on circumstantial evidence, the court must satisfy itself that various circumstanced in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. 1 When even a link breaks away, the chain of circumstances gets snapped and other circumstances cannot in any manner establish the guilt of the accused beyond all reasonable doubts. 2 When attempting to convict on circumstantial evidence alone the Court must be firmly satisfied of the following three things: 3 a. The circumstances from which the inference of guilt is to be drawn, must have fully been established by unimpeachable evidence beyond a shadow of doubt; b. The circumstances are of determinative tendency, unerringly pointing towards the guilt of the accused; c. The circumstances taken collectively are incapable of explanation on any reasonable hypothesis except that of the guilt sought to be proved against him. 4 Hence, the circumstances must be conclusively established and the chain of circumstances must be so closely knit so as to exclude all the reasonable hypothesis of the innocence of the 1 Mohan Lal v. State of Uttar Pradesh, AIR 1974 SC 1144; Sharad Birdichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; J. A. K. NANDI, INDIAN EVIDENCE ACT 168 (6th ed. 2010). 2 Janar Lal Das v. State of Orissa, 1991 (3) SCC 27; A. Jayaram and Anr. v. State of AP, AIR 1995 SC Mahmood v. State of U.P., AIR 1976 SC 69; RAM JETHMALANI, THE LAW OF EVIDENCE 124 (1st ed. 2013). 4 WOODROFF & AMIR ALI, LAW OF EVIDENCE 795 (19th ed. 2012); Section 11, Indian Evidence Act,

13 accused. The evidence must point only to the guilt of the accused and if the evidence leads to two interpretations, the interpretation in favour of the accused must be preferred. 5 In the instant case, prima facie, chain of circumstances does not link with each other and every instance in itself has multiple hypothesis apart from the hypothesis provided by the prosecution. Panna Boy was released on parole to look after his ill wife and her daughter who was left alone. He daily used to go to the hospital where his wife was admitted and looked after her and his daughter. 6 Moreover, Mr. Jaimil was admitted in the hospital due to chest problems and Mr. Saba was shooting for a new TV serial project with Ms. Poonam. Even at mall, all the accused were for different purposes as per the proposition. Hence, it can clearly be inferred from the circumstances that all the accused have their own reasons to be at the hospital and even at the Mall and the circumstances proving the guilt of the accused cannot be established. II. THAT MR. SABA, MR. JAIMIL AND MR. PANNA BOY ARE NOT LIABLE FOR CRIMINAL CONSPIRACY. It is reverentially put forth that the act done by Mr. Panna Boy, Mr. Saba and Mr. Jaimil is not illegal and they cannot be held liable for criminal conspiracy with common intention. The basic requisites of both the Section are not satisfied under the instant case as the act done by the accused does not constitute any crime. 5 N. Rajendra v. State, 1996 Cri.L.J. 257 (Kar); Harendra Narain Singh v. State of Bihar, AIR 1991 SC 1842; RATANLAL & DHIRAJLAL, LAW OF EVIDENCE 158 (22nd ed. 2006). 6 Paragraph 11, Moot Proposition. 2

14 A. That there was no common intention under Section 34 of the I.P.C. The common intention as per Section 34 of the Indian Penal Code, 1860 cannot be applied in the present case. It lays down that the consensus of minds of person to bring about certain result having criminal propensity and participation in criminal act in same manner is essential ingredient of common intention. 7 Common intention should be inferred from the whole conduct of all the persons concerned and not only an individual act of one of them. 8 The very basis ingredient being the criminal act is not satisfied in the instant case. Hence, all the accused cannot be held liable for the same. i. That the ingredients of common intention are not satisfied. The question of common intention under this section is one of fact to be determined on the circumstances of each case. 9 The provision of s.34 is a rule of evidence it does not create a substantive offence. 10 It simply lays down a rule of evidence: 11 a. That the criminal act was done by more than one person. b. That the said act was done, in furtherance of the common intention of all; c. Then, each of such persons is liable for the act done; and d. The liability of each of such persons would be in the same manner if the act was done by him alone. Before a man can be held liable or acts done by another, under the provisions of this section it must be established that there was a common intention in the sense of a pre-arranged plan 7 Vinay Kr. Rai v. Union of India, (2008) 12 SCC Mukha Singh and Anr. v. State of Rajasthan, 1976 Cr.L.J. 457 (Raj). 9 Sachin Jana and Ors. v. State of West Bengal, 2008 (2) SCALE 2 SC. 10 R. A. NELSON, INDIAN PENAL CODE 141 (10th ed. 2008). 11 RATANLAL & DHIRAJLAL, INDIAN PENAL CODE 356 (32nd ed. 2013). 3

15 between the two and the person sought to be held so liable had participated in some manner in the act constituting the offence. 12 Section 34 of the Indian Penal Code will not be attracted unless first it is established that a criminal act was done by several persons, second, that there was a common intention and a pre-arranged plan to commit an offence and third that there was participation in the commission of the offence in furtherance of that common intention. 13 The basic ingredients of this section are not satisfied in the instant case and hence the accused are not liable under Section 34 of I.P.C., ii. That the pre-arranged plan has to be established by the prosecution. It is the settled position of law that to invoke Section 34, Indian Penal Code the prosecution must establish common intention and prove that the criminal act was done in concert pursuant to a pre-arranged plan. In inferring common intention from the evidence on record one must keep in the forefront of his mind the distinction between the common intention and the same or similar intention, though the dividing line between them is often very thin. If this distinction is overlooked, miscarriage of justice is likely to occur. It is equally well settled that inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. 14 Under Section 34 when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The words "in furtherance of the common intention of all" are a most essential part of Section 34 of the Indian Penal Code. 15 The totality of circumstances must be taken into consideration in order to arrive at conclusion. Whether the accused had a 12 Chandrakant Murgyappa Umrani v. State of Madhya Pradesh, AIR 1999 SC Parichhat v. State of Madhya Pradesh, AIR 1972 SC State v. Dharanidhar, AIR 1976 Ori Devi Lal & Anr. v. The State of Rajasthan, AIR 1971 SC

16 common intention to commit the offence under which they can be convicted. 16 In the instant case there was no pre-arranged plan with regard to committing any offence under any of the penal provisions under I.P.C., iii. That the guilt is not proved by the conduct of the accused. It is true that a common intention should be anterior in time to the commission of the crime, showing a prearranged plan and a prior concert and though, it is difficult in most cases to prove the intention of an individual, it has to be inferred from the act or conduct or relative circumstances of the case. Such an inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination and the concert with which the beating was given or the injuries caused by one or some of them, the acts done by others to assist those causing the injuries, the concerted conduct subsequent to the commission of the offence and other acts would help in determining the common intention. 17 Section 34 of the IPC requires not only common intention but also participation in the crime. When specific offence is committed by some of the conspirators in pursuance of the conspiracy, the common intention of all would not be enough to fasten the guilt on all of them. Section 34 of the IPC is applicable when some criminal act is done jointly in furtherance of the common intention of all while conspiracy is merely an agreement to commit a crime. Addition of Section 34 of IPC does not convert it to a conspiracy charge.merely because a number of persons had gathered together at a certain place; a common intention to commit a crime cannot be inferred. 18 Thus, a mere presence at the scene 16 RATANLAL AND DHIRAJLAL, LAW OF CRIMES 271 (27th ed. 2013). 17 Radhakishan v. State, 1973 Cr.L.J Ram Nath Madho Prasad & Ors. v. State of M.P., AIR 1953 SC 420 (424). 5

17 of the crime does not bring home the offence but this is a matter of evidence and has to be established by cogent proof. 19 All the aforementioned factors and essentials regarding common intention are not satisfied in the instant case and hence the charge on accused under Section 34 is liable to be set aside. B. That there is no criminal conspiracy in the instant case. In case of conspiracy in which the prosecution relies only on circumstantial evidence to establish a criminal agreement between the accused persons to commit an alleged offence, it is necessary for the prosecution to prove and establish such circumstances as would lead to the only conclusion of existence of a criminal conspiracy. If such circumstances compatible with the innocence of the accused persons the prosecution cannot succeed on the basis of such circumstantial evidence. 20 Mere suspicion of motive is not sufficient to frame charges against the accused. There should be some reasonable ground to believe that person has taken part in the conspiracy or in other words reasonable likelihood of participation. There should be something to connect him with the crime. Further, direct evidence of conspiracy is rarely available and generally based on circumstantial evidence. 21 Hence, it can be inferred clearly that mere suspicion cannot be a ground for holding accused liable and mere presence of the accused at the crime scene does not prove that they were shooting for the movie Hit Factory and it is humbly submitted that the charges under Section 120-B on the accused are liable to be set aside. 19 Karmat Ali and Ors. v. State of Assam, AIR 1978 SC RATANLAL & DHIRAJLAL, LAW OF CRIMES 342 (27 th ed. 2013). 21 Ganga Ram Kondiba Ingle Etc. v. State of Maharshtra, 2000 Cr.L.J. 336 (Bom). 6

18 III. THAT THE CHARGES HAVE BEEN WRONGLY FRAMED BY THE COURT OF SESSIONS, BAMBI THANE. It is humbly put forth by the defence that the charges on Panna Boy under Section 227 and the charges on Jaimil and Saba under Section 385 have been wrongly framed by the Court of Sessions. The pre requisites of both the Sections are not satisfied in the instant case and hence the accused cannot be held liable to be charged under these penal provisions. 22 A. That Mr. Panna Boy cannot be tried under Section 227 of the I.P.C. Mr. Panna boy in the instant case have been charged under Section 227 for the violation of condition under remission, it is humbly contended that this charge is prima facie wrongly framed. The parole does not fall under the ambit of parole and hence its violation cannot be charged under the violation of parole even if there has been a violation of any of the conditions of parole. i. That parole does not amount to remission of sentence. Parole has been explained as release from jail, prison or other confinement after actually serving part of sentence. 23 Conditional release from imprisonment which entitles parolee to serve remainder of his term outside confides of an institution, if he satisfactorily complies with all terms and conditions provided in parole order. 24 Parole did not amount to the suspension, remission or commutation of sentences. Notwithstanding the provisions of the offending Section, a convict is entitled to parole, subject, however, to the conditions governing the grant of it under the statute, if any, or the Jail Manual or the Government Instructions. It was further held that the Writ Petition 22 S. C. SARKAR, CODE OF CRIMINAL PROCEDURE 216 (10th ed. 2012); RATANLAL & DHIRAJLAL, THE CODE OF CRIMINAL PROCEDURE 467 (9th ed. 2013). 23 Sunil Fulchand Shah v. Union of India &Ors, (2000) 3 SCC BLACK S LAW DICTIONARY 1976 (9th ed. 2009). 7

19 apparently appeared to be misconceived and filed in a hurry without approaching the appropriate authority for the grant of relief in accordance with jail manual applicable in the matter. 25 Hence, parole does not amount to remission of sentence. In respect of parole the Constitution Bench 26 of the Supreme Court has categorically observed that "parole" is a form of "temporary release" from custody, which does not suspend the sentence or period of detention. From this it is clear that parole does not amount to suspension of sentence. Parole clearly does not fall under remission of sentence. Remission means reducing the period of sentence without changing its character e.g. two years rigorous imprisonment to one year rigorous imprisonment. Thus, as parole does not fall under either of the two categories i.e. suspension or remission, it would not be covered by Section In the case in hand, parole was granted to the accused which does not fall under remission of sentence. Hence, it can clearly be inferred that if parole does not come under the ambit of remission, the accused cannot be held liable for the misuse of parole under the provision which deals with the misuse of remission, even if assuming that there has been a violation of parole grounds. ii. That the violation of condition for remission does not arise. Remission granted to an accused is altogether different from parole. Parole is a provision other than release from confinement, but is deemed to be a part of the imprisonment. Parole is thus a grant of partial liberty or lessening of restrictions on a convicted prisoner. But release on parole has not changed the status of the prisoner. It is thus clear that parole and remission 25 Dadu Tulsidas v. State of Maharashtra, (2000) 8 SCC Id. 27 S. Sant Singh Pilli Singh v. Secretary, Home Department, Government of Maharashtra and Ors., 2006 Cri.L.J (FB); SOHON, CODE OF CRIMINAL PROCEDURE 213 (5th ed. 2008); Code of Criminal Procedure,

20 are different things. Section 227, IPC deals only in respect of remission.that being so, the Session Judge was not justified in framing a charge and convicting the accused/appellant for the offence punishable under section 227 IPC. 28 Thus, the conclusion can be derived that as Section 227 of The Indian Penal Code, 1860 deals with the violation of a condition on which remission is granted and parole is not covered within the meaning of remission, the charge is liable to be set aside. Hence, it is humbly submitted that irrespective of the fact that there was breach or violation of condition for grant of parole by the accused, he cannot be charged under Section 227 for the reason that it deals with violation of condition for remission while parole does not come within the ambit of remission. B. That Mr. Saba and Mr. Jaimil cannot be held liable under Section 385 of the I.P.C., It is humbly put forth by the defence that the accused Mr. Saba and co-accused Mr. Jaimil cannot be held liable under Section 385 of the I.P.C. This section punishes the putting of a person in fear of injury in order to commit extortion. It is necessary that the accused should have put some person in fear of injury in order to extort some property from him. Injury includes only such harm as may be caused illegally to a person s mind, body, reputation or property. 29 In the instant case, the facts and circumstances of the case do not fulfill the third condition, i.e. the ingredients of extortion haven t been satisfied which has been explained hereafter. Therefore the accused cannot be awarded punishment under this section. 28 Radhakrishnan v. State, LW (Crl) Mantri Mattapalli v. Narasimha Rao, AIR 1919 Mad

21 i. That the pre-requisites of extortion are not satisfied. For conviction under section 385, the essentials of section 383 i.e. extortion has to be established which are as follows: 30 a. The accused must put any person in fear of injury to that person or any other person, b. The putting of a person in such fear must be intentional, c. The accused must thereby induce the person any property, valuable security or anything sealed which may be converted into a valuable security and d. Such inducement must be done dishonestly. Thus one of the pre-requisites of the offence of extortion is the intentional, dishonest inducement of the victim by the accused in a way that the accused in the fear of injury delivers any property, valuable security or anything sealed which may be converted into a valuable security. Injury contemplated should be one that the accused can himself inflict or cause to be inflicted. The term property as used in the definition of extortion in section 383 may include both movable and immovable property. Here the words valuable security denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right. 31 Thus, the essence of the offence of the extortion is in the actual delivery of possession of the property by the person put in fear and the offence is not complete before such delivery. 32 The person who is a victim of extortion must have delivered to accused or any other person some property or any other document, which can be converted into valuable security in pursuance 30 R.S.Nayak v. A.R Antulay, AIR 1986 SC 2045; RATANLAL & DHIRAJLAL, INDIAN PENAL CODE 3650 (32nd ed. 2013). 31 Section 30, Indian Penal Code, K. D. GAUR, INDIAN PENAL CODE 576 (6th ed. 2006). 10

22 of a dishonest inducement of the beneficiary or somebody on behalf of the beneficiary. The Court must be satisfied that the putting in fear was with the intention of extorting delivery of some property. 33 In the instant case, a close perusal of the materials available and facts and circumstances involved clearly reveal that it was not the accused who called as there are no facts or evidence from which the same can be inferred. Moreover, even if the alleged phone calls are presumed to have been made by the accused, no word in the given records of the conversation can be construed to imply a demand from the victim i.e. Ms. Naika for property, valuable security or anything sealed which can converted into the same. The only inference that can be drawn from the conversation in hand is that the calls were made for either seeking cooperation in the completion of the movie or for the release of the movie in dispute. 34 Therefore the accused cannot be convicted under this section. IV. THAT THE ACCUSED ARE NOT LIABLE FOR DEFAMATORY PUBLICATION UNDER SECTION 501 AND 502 OF THE I.P.C. It is humbly put forth by the defence that the offences against the accused under Section 501 and 502 cannot be brought home. Section 501 provides for an offence for printing or engraving matter known to be defamatory while Section 502 deals with the offence relating to sale of printed or engraved substance containing defamatory matter. To bring this offence to home, the prosecution firstly needs to establish that the publication was defamatory which has been dealt with under Section 499 of the I.P.C., Naran Velji v. Ranjit Jamnadas Kapadia, AIR 1955 Sau Annexure 4, Call Records, Moot Proposition. 11

23 A. That there was no intention or prior knowledge to cause harm to Ms. Naika. The intention to cause harm are the essential ingredients to constitute offence under Section 499 defining defamation which is the basis of the Section in dispute i.e. Section 502 of the Indian Penal Code, Since defamation is an offence, the ingredients are to be proved beyond reasonable doubt to bring home guilt of the persons accused. 35 The liability for publication of the offending news- item can be fastened on them only if the complaint and the documents accompanying the complaint and the statement of the complainant show that they had such prior knowledge or that they were somehow concerned with the publication of the defamatory news-item and that they had the requisite intention to harm the reputation of the complainant, the non-applicant, by publication of the concerned news-item. 36 Where in the prosecution of the accused, the incriminating news was published without knowing or good reason to believe that such matter was defamatory of the complainant and the accused had no ill will against him, the accused could not be held responsible in connection with defamation. 37 In the instant case, Mr. Jaimil and Mr. Saba had no ill will against Ms. Naika. There is no reason to believe that they intended to publish any kind of defamatory matter. The advertisements in popular newspapers and magazines were published with the bonafide intention of publicizing and promoting the film so as to draw public attention towards the same. 35 Dr. Radhanath Rath and Anr. v. Biraja Prasad Ray, 1992 Cri.L.J Ashok Kumar Jain and Ors v. State of Maharashtra & Anr., MANU/MH/0017/ Supra note

24 B. That there is no good reason to believe that the accused published matter for defamation. Good reason to believe is a pre-requisite for convicting an accused under defamatory publication of any matter. Good reason to believe means more than sufficient reason to believe so that, unless the printer or engraver had strong grounds for believing a matter to be defamatory he will not be liable under this section. In order that a printer or engraver of a defamatory matter may be liable, it is essential that he should have the mens rea defined in this section, namely, knowledge or good reason to believe that the matter printed or engraved is defamatory of some person. 38 Every expression, which is offending, need not necessarily be defamatory. For instance, Words and expression which are merely offending in nature due to having a tendency to injure the age of the person for whom they are used may cause pain. But they may not be defamatory in character. At best, they might be called provocative. 39 In the instant case the accused printed the posters of the movie for which they had all the rights being the director and producer of the movie. This right cannot be fettered by any public statement made by the actress against the movie or her participation in that movie and the matter cannot be considered defamatory for the same reason. Hence it is most reverentially submitted on behalf of the defence that all the charges on all the accused cannot be established and are liable to be set aside. 38 Nemichand v. Khemraj, AIR 1973 Raj Harbans Singh v. State of Rajasthan and Anr., 1998 Cri.L.J

25 PRAYER Wherefore, in the light of facts stated, issues raised, arguments advanced and authorities cited; it is most humbly and respectfully prayed before The Hon ble Court that it may be pleased to: 1. Acquit Mr. Panna Boy from the charges under Section 120 B r. w. 34, 227, 501 and 502 of the IPC. 2. Acquit Mr. Saba and Mr. Jaimil from the charges under Section 120 B r. w. 34, 385, 501 and 502. And pass any other order or grant any other relief in favor of the defence, which this Honorable Court may deem fit to meet the ends of justice, equity and good conscience. All of which is most humbly and respectfully submitted. Date: 23 of August, 2014 Place: Bambi Thane Sd/- Advocate(s) for Defence XII