BAMBI, THANE IN THE CASE OF STATE OF BAMBI (PROSECUTION) (DEFENCE)

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 DEFENCE TEAM CODE

TABLE OF CONTENTS INDEX OF AUTHORITIES....... IV STATEMENT OF FACTS...... VI THE STATEMENT OF CHARGES...... VIII THE SUMMARY OF ARGUMENTS....... IX ARGUMENTS ADVANCED.....1 1. THE DEFENDANTS CANNOT BE HELD LIABLE UNDER SECTION 120A READ WITH SECTION 34 OF THE BPC, 1908...........1 1.1 THERE ARE NO PRIME FACIE MATERIALS TO PROCEED AGAINST THE DEFENDANTS ON THE FALSE ALLEGATION OF CONSPIRACY.. 1 1.2 THE DEFENDANTS CANNOT BE HELD LIABLE UNDER SECTION 34 OF BPC, 1908...2 1.3 THE PROSECUTION NEEDS TO PROVE THE OFFENCE BEYOND REASONABLE DOUBT...3 2. THAT THE SAID PAROLE GRANTED TO THE ACCUSED MR. PANNA BOY DOES NOT AMOUNT TO REMISSION OF SENTENCE UNDER SECTION 227 OF THE B.P.C OF 1860...5 2.1 PAROLE DOES NOT FORM PART OF REMISSION OF SENTENCE..5 2.2 PAROLE IS NOT COVERED UNDER THE PROVISIONS OF REMISSION UNDER SECTION 432 OF CODE OF CRIMINAL PROCEDURE, 1973 AND SECTION 227 OF BPC, 1908..6 2.3 THAT THE PAROLE GRANTED TO MR. PANNA BOY WAS VALID...7 3. THE ACCUSED ARE NOT LIABLE FOR THE CRIME OF EXTORTION UNDER SECTION 385 OF B.P.C., 1860.......9

III 3.1 THE ACCUSED HAD NO REASON TO THREAT MISS NAIKA........9 3.2 THAT THERE IS REASONABLE DOUBT AS TO GUILT OF ACCUSED 10 4. THE ACCUSED MR. SABA, MR. JAIMIL AND MR. PANNA BOY ARE NOT LIABLE FOR DEFAMATION AS DEFINED UNDER SECTION 501 AND 502 OF THE I.P.C.1860...13 4.1 MS. NAIKA IS ESTOPPED UNDER SECTION 115 OF EVIDENCE ACT, 1872..13 4.2 THE IMPUTATION FALLS WITHIN THE EXCEPTION 9 OF SECTION 499 OF B.P.C......14 PRAYER... 16

IV INDEX OF AUTHORITIES STATUTES:- CODE OF CRIMINAL PROCEDURE, 1973 BARATA PENAL CODE, 1860 BARATA EVIDENCE ACT, 1872 PRISON (BOMBAY FURLOUGH AND PAROLE) RULES, 1959 THE PRISON S ACT, 1894 LIST OF CASES PAGE NO. 1. Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra, AIR 1965 SC 682..1 2. Chief Education Officer, Salem v. KS Palanichamy, (2012) 2 MWN (Cri) 354 (Mad)...13 3. Dayabhai chagganbhai vs. State of Gujarat, AIR 1964 SC 1563 3 4. Dhananjay vs State of Bihar, (2007) 14 SCC 768...9 5. Dharam Pal v. State of Haryana, AIR 1978 SC 1492..2 6. E. K. Chandrasenan v. State of Kerala, (1995) SCC (Cr) 329 at p. 337..1 7. Emp. V Shivdas Omkar 15 BLR 515.10 8. Fatma Bibi Ahmed Patel Vs. State Of Gujarat & Anr., 2008 (6) SCC 789.1 9. Girja Shankar Mishra v. State of UP, 1994 SCC Supl. (1) 26.2 10. Gurbachan Singh vs Satpal Singh AIR 1990 SC 209 10 11. Iqbal Moosa Patel v. State of Gujarat (2011) 2 SCC 198...3,12 12. JA Naidu v. State of Maharashtra, AIR 1979 SC 1537 at p. 1544..2

V 13. Jefferey J. Diermeier v. State of WB (2010) 3 SCC (Cri) 138..13 14. Kanwal lal v. State of Punjab, AIR 1963 SC 1317...15 15. Lal Chand v. State of Haryana, (1984) 1 SCC 686..2 16. LML ltd Vs State of U.P., (2008) 3 SCC 128 13 17. Mehboob Shah v. emperor, AIR 1945 PC 118 pp. 120, 121...3 18. N. Sathya v. V Sekar, (2009) MWN (Cri) 266 (Mad)...13 19. Pandurang v. State of Hydrabad, AIR 1955 SC 216 at p. 222.3 20. Paramhans Yadav v. State of Bihar, 1987 CrLJ 789 at p. 792, 797 (SC)...1 21. Ram Singh v. State, AIR 1953 SC 420 at 424.2 22. Ramakant Rai v Madan Rai (2003) 12 SCC 1995.11 23. Raul Fernandes vs Naren Dossa, (1999) 3 Mah LJ 938 15 24. S. Khushboo Vs. Kanniammal and Anr, AIR 2010 SC 3196 15 25. S. Sant Singh @ Pilli Singh vs Secretary, Home Department, 2006 CriLJ 1515...5,8 26. Shivaji vs the State of Maharashtra, AIR 2009 SC 56...3 27. State of Kerela vs Bahuleyan (1986) 4 SCC 124...11 28. State Of Maharashtra & Anr vs Suresh Pandurang Darvakar, (2006) 4 SCC 776..6 29. State of Maharashtra v. Sadrudin Jan Mohd Bardia, 1993 (1) Cr. L.C. 238 at 239 (SC) 2 30. State of Punjab vs Sukhchain Singh AIR 2009 SC 1542..10 31. Sukhvinder Singh v. State of Punjab, 1994 JCC 495 at p. 506, 507 (SC)...1 32. Suresh Chandra Bahri v. State of Bihar, 1994 (2) Crimes 1027 at p. 1074 (SC) 1 33. Vishnu Shiv Ram Bhoir AIR 1979 SC 1943...9

VI STATEMENT OF FACTS 1. Panna Boy is a famous hero of the Bambi film industry. He was convicted to 5 years imprisonment in March 2013 by Supreme Court of Barata under TADA and Arms Act. A movie Hit Factory had some scenes remaining to be shot. These were intimate scenes which Miss Naika had declined earlier. Miss Naika refused to shoot further for the movie. On 14 th Aug the accused attempted to convince her to complete the movie but she refused. Due to this there was huge pressure of creditors on Mr Saba. 2. During his time in prison Panna was humble in nature and good in conduct. He built a good reputation amongst prisoners. In December 2013 Panna came out on parole. His grounds were the illness of his wife and yearnings of his daughter. In February 2013 he was awarded parole again on the same grounds. Panna visited the hospital every day. His wife was admitted in Star Hospital. On 5 th of February Jaimil got himself admitted for chest pain and was advised two weeks rest. On 8 th of February Panna was seen in a mall which had been readied for a shoot. On the same day he was also seen in a hospital room that had been readied for a shoot. Star hospital lent out rooms for shooting. 3. On 14 th of February, full page ads of Hit Factory were released. A suit for permanent injunction against the movie was filed in the Bambi high court by Miss Naika on 16 th of February. The same evening Miss Naika received two threatening phone calls. The callers asked her to complete the movie or face dire consequences. On 17 th of February Miss Naika filed a criminal complaint against the accused. After cognizance of the complaint had been taken, the trial court framed the charges and has referred the matter to the Sessions court of Bambi.

VII 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 Barata Penal Code

VIII SUMMARY OF ARGUMENTS I. THE DEFENDANTS CANNOT BE HELD LIABLE UNDER SECTION 120A READ WITH SECTION 34 OF THE BPC, 1860. The accused were not part of a criminal conspiracy to defame Miss Naika. The said conspiracy was not committed as there is no prima facie evidence to prove the conspiracy and that the accused cannot be charged on mere suspicion. II. THE ACCUSED MR. SABA, MR. JAIMIL AND MR. PANNA BOY ARE NOT LIABLE FOR DEFAMATION AS DEFINED UNDER SECTION 501 AND 502 OF THE B.P.C.1860 That the act of the accused as the complainant is estopped under section 115 of the Indian Evidence Act and that the alleged imputation sought to be defamatory falls within the ambit of exception 9 of section 499 of the B.P.C. III. THE ACCUSED ARE NOT LIABLE FOR THE CRIME OF EXTORTION UNDER SECTION 385 OF B.P.C., 1860. The accused are not liable as there is no reason for the accused to threaten Ms. Naika and there is reasonable doubt of a third party being involved in the said act. IV. THAT THE SAID PAROLE GRANTED TO THE ACCUSED MR. PANNA BOY DOES NOT AMOUNT TO REMISSION OF SENTENCE UNDER SECTION 227 OF THE B.P.C OF 1860. That remission and parole are two different concepts and the authorities hold discretion in the grant of parole hence the parole granted is valid and the said charge does not apply on the accused.

WRITTEN SUBMISSIONS 1. THE DEFENDANTS CANNOT BE HELD LIABLE UNDER SECTION 120A READ WITH SECTION 34 OF THE BPC, 1908. Section 120A of the B.P.C. defines conspiracy as an agreement between two or more persons to do, or cause to be done, an illegal act or an act which is not illegal by illegal means. 2 It is submitted that the essential ingredients of criminal conspiracy are not satisfied and hence the defendants cannot be charged with such offence. 1.1 THERE ARE NO PRIME FACIE MATERIALS TO PROCEED AGAINST THE DEFENDANTS ON THE FALSE ALLEGATION OF CONSPIRACY. To prove conspiracy there should be prime facie evidence that all the accused were party to the conspiracy before the activities of one or more persons can be used against his co-conspirators. 3 Further, 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. 4 In the instant case the facts are such that they lead to more than one inference at the same time. There exists a possibility of Miss Naika never intending to complete the movie and her being involved in a cheap publicity stunt to get the attention of the media and film industry. Further, as per the facts of the case, it is also a reasonable possibility that most of the crew members of Hit Factory were present at the same time at the Star hospital and their presence was a mere coincidence; 2 Fatma Bibi Ahmed Patel Vs. State Of Gujarat & Anr., 2008 (6) SCC 789 3 Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra, AIR 1965 SC 682 4 Paramhans Yadav v. State of Bihar, 1987 CrLJ 789 at p. 792, 797 (SC); Suresh Chandra Bahri v. State of Bihar, 1994 (2) Crimes 1027 at p. 1074 (SC); E. K. Chandrasenan v. State of Kerala, (1995) SCC (Cr) 329 at p. 337; Sukhvinder Singh v. State of Punjab, 1994 JCC 495 at p. 506, 507 (SC)

2 It is to be noted that Mr. Panna s parole was never certain for it was at the discretion of state officials, and contrary to the allegations of the prosecution, shooting for Hit Factory could not have been scheduled depending on such a future occurrence. 1.1.1 MERE SUSPICION NOT SUFFICIENT FOR PROVING CONSPIRACY It is an established practice of law that suspicion, however grave, cannot take the place of proof. 5 Arguendo, it is proved that all the accused were seen at the spot at the time of commission of the offence, that fact by itself could not be held enough to prove common intention of the accused to commit the offence. 6 Further, the Supreme Court has held in many of its judgment that the conduct and the surrounding circumstances must bear upon the offence and must not be too remote. 7 Further, there is neither any direct or circumstantial evidence to prove Mr. Saba and Mr. Jaimil s involvement in the alleged call for extortion on February 16 th, 2014. There also exists a possibility that the threats could have been made by investors of the movie, or by any fan of Mr. Panna or of Ms. Naika. 1.2 THE DEFENDANTS CANNOT BE HELD LIABLE UNDER SECTION 34 OF BPC, 1908 It is well established that a common intention presupposes prior concert. 8 It requires a prearranged plan because, before a person can be held vicariously liable for the criminal act of 5 JA Naidu v. State of Maharashtra, AIR 1979 SC 1537 at p. 1544 6 Ram Singh v. State, AIR 1953 SC 420 at 424; Girja Shankar Mishra v. State of UP, 1994 SCC Supl. (1) 26 7 Lal Chand v. State of Haryana, (1984) 1 SCC 686 8 Dharam Pal v. State of Haryana, AIR 1978 SC 1492; State of Maharashtra v. Sadrudin Jan Mohd Bardia, 1993 (1) Cr. L.C. 238 at 239 (SC)

3 another person / persons it is to be established that such act has been done in furtherance of the common intention of all of them. 9 In the present case, there may be a possibility that Mr. Jaimil and Mr. Saba were in touch with each other even after the movie Hit Factory was left incomplete, but the facts are not sufficient to prove that Mr. Panna had any contact with them prior to the date they met in the Star hospital. The fact that it was totally on the discretion of the State Officials to grant parole to Mr. Panna, he couldn t have conspired on something which was so uncertain and was depended on others. A pre-arranged plan requires certainty of circumstances for the execution of the plan and meeting of all the accused prior to the offence committed 10, but there are no evidence depicting the same. 1.3 THE PROSECUTION NEEDS TO PROVE THE OFFENCE BEYOND REASONABLE DOUBT It is a cardinal principle that the accused is presumed to be innocent unless proved to be guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt. 11 Further, the very basic principle of criminal jurisprudence lays down the burden on the prosecution to prove the offence against the accused. 12 It is humbly submitted that there is neither oral or documentary evidence nor any circumstantial evidence from which it can be inferred that all the accused could have entered into a criminal conspiracy, as alleged. 9 Pandurang v. State of Hydrabad, AIR 1955 SC 216 at p. 222; Mehboob Shah v. emperor, AIR 1945 PC 118 pp. 120, 121. 10 Ibid 11 Shivaji vs the State of Maharashtra, AIR 2009 SC 56; Iqbal Moosa Patel v. State of Gujarat (2011) 2 SCC 198; Dayabhai chagganbhai vs. State of Gujarat, AIR 1964 SC 1563 12 Section 102, 103 and 104 of Evidence Act, 1872

4 The charge of criminal conspiracy against the accused is based on two instances (i) attempt to extortion 13 (ii) attempt to defamation 14. Reasonable doubt has arisen concerning the circumstances and the involvement of the defendants in both the instances. It is therefore submitted, that the charge for criminal conspiracy cannot be drawn against the accused since there are multiple number of possibilities that could lead to the events that occurred and that a single incriminating inference cannot be drawn as is required by the law. Henceforth, it is humbly submitted that the defendants are not liable under section 120B read with section 34 of BPC. 13 Under section 385 of the BPC, 1908 14 Under section 501/502 of the BPC, 1908

5 2. THAT THE SAID PAROLE GRANTED TO THE ACCUSED MR. PANNA BOY DOES NOT AMOUNT TO REMISSION OF SENTENCE UNDER SECTION 227 OF THE B.P.C OF 1860 Herein the defence points out that parole and remission are entirely two different concepts. The accused in the present case has been charged with the offence under Section 227 if the B.P.C. The said section provides punishment for violation of condition of remission. The same when seen in the light of the case the accused Mr. Panna had been released on Parole 15 which is different from remission of sentence. 2.1 PAROLE DOES NOT FORM PART OF REMISSION OF SENTENCE In furtherance, according to the Prisons (Bombay Parole and Furlough) Rules, 1959 Period of parole is not part of sentence and is not to be counted towards sentence undergone by prisoner. 16 It neither amounts to suspension of sentence. 17 Further Rule 19 of the above mentioned act reads out, Parole does not amount to suspension of sentence or remission of sentence and is not covered by Sec 432 of the Criminal Procedure Code, 1973. 18 A nearly same view was brought out in the apex court judgement where the court held in regard to the Prison (Bombay Furlough and 15 8 & 10 Moot Proposition 16 Rule 20 of the Prisons (Bombay Furlough and Parole) Rules, 1959 17 Sharad Bhiku Marchande v. State of Maharashtrra, (1990) 3 Bom C R 633; Dadu v. State of Maha, (2002) 1 Mah Lj 902; Anil Shankar Rao Zade v. State of Maha, (2002) 1 Mah Lj 592 18 S. Sant Singh @ Pilli Singh vs Secretary, Home Department, 2006 CriLJ 1515

6 Parole) Rules, 1959 and the Prison s Act 1894 that the period spent on parole is not to be counted as remission of sentence. 19 Furthermore, the Apex Court has dealt with general concept of parole and it was observed that parole is a provisional release from confinement but is deemed to be a part of imprisonment and as such parole is a grant of partial liberty or lessening of restrictions to the convict prisoner, but the release on parole does not change the status of the prisoner. 20 But remission refers to reducing the amount of sentence without changing its character. 21 Thus, it is seen that parole is a form of temporary release from custody, which does not suspend the sentence or the period of detention, but provides conditional release from custody and changes the mode of undergoing the sentence. 2.2 PAROLE IS NOT COVERED UNDER THE PROVISIONS OF REMISSION UNDER SECTION 432 OF CODE OF CRIMINAL PROCEDURE, 1973 AND SECTION 227 OF BPC, 1908 In this regard, it is to be brought in notice that sec. 432 of the Cr.P.C. states the powers to remit or suspend sentences and provides punishment for an offence under section 227 of the I.P.C. and it has been stated in the Rajasthan High Court judgement citing the constitutional bench judgement of the apex court that, parole cannot be covered by Section 432 of the Code of Criminal Procedure. 22 19 State Of Maharashtra & Anr vs Suresh Pandurang Darvakar, (2006) 4 SCC 776 20 AIR 1987 SC 1383 21 Sanjay Jain Alias Nawab vs State (Home Department) Ors., D.B. Civil Writ (Parole) Petition No.18721/2012, Raj HC dated 28.01.2013 22 Ibid, 25

7 Hence it is contented that the charge on the accused for violation of conditions of remission of sentence does not stand as parole granted to the accused does not amount to remission of sentence. Furthermore, as is evident from the facts of the case there was no official record of misuse of parole or furlough granted to the accused, Mr. Panna Boy. 2.3 THAT THE PAROLE GRANTED TO MR. PANNA BOY WAS VALID. This has been brought out before this hon ble court that parole granted to the accused Mr. Panna Boy is not to be counted as remission of sentence hence he is not liable for the offence under section 227 of the B.P.C. Furthermore the defence points out that the parole granted to Mr. Panna Boy is valid as the Maharashtra Prison Manual, 1979 as is applicable in the State of Bambi. 2.3.1 THE STATE GOVERNMENT OR ITS OFFICIALS ARE EMPOWERED TO GRANT PAROLE The Maharashtra Prison Manual, 1979 states that the authorities competent to release the prisoner on parole are: the state government in specified cases; the Commissioner or the Additional Commissioner of the Division in other cases; the superintendent in case of death of the prisoner s father, mother, brother, sister, spouse or child. He can grant parole for a period not exceeding seven days. In such cases, the superintendent must inform and get the approval of his action from the Divisional Commissioner. 23 Furthermore the Manual also says that a prisoner may be released on parole, for such period as the competent authority in its discretion may order, in case of serious illness or death of any member of the prisoner s family or of the closest relations or for any other sufficient cause. 24 23 Ch XXXVII, Rule 18, Maharashtra Prison Manual, 1979 24 Ch XXXVII, Rule 19, Maharashtra Prison Manual, 1979

8 Now in the light of the facts of the case it is evident that the discretion of granting parole to Mr. Panna Boy was with the competent executive authority and was granted on the said ground of illness of wife and hence has no irregularities. 2.3.2 IT IS THE DISCRETION OF COMPETENT AUTHORITY TO GRANT PAROLE Further in support of the above the Prison s Act 1894 also states about the discretion of the competent authority in granting parole. 25 The requisite rule here states that on receipt of an application for parole, the Competent Authority may make such enquiries as it considers necessary, and pass such orders as it considers fit. 26 If the Competent Authority considers that there is no objection to release the prisoner concerned on parole it shall make an order for his release on parole. 27 Hence it is contented before this hon ble court that as the parole was already granted to the accused Mr. Panna Boy it ipso facto means that the enquiries regarding the parole validity had already been done by the competent authorities and the same cannot be said to have been obtained in a wrongful way. 25 Manjula Bai v. State of Maha, (2002) 3 Mah Lj 226 ; Bhika Bhai Devshi v. State of Guj, AIR 1987 Guj 136(FB) 26 Ibid 27 Rule 23 Prison s Act 1894, S. Sant Singh @ Pilli Singh vs Secretary, Home Department, 2006 CriLJ 1515

9 3. THE ACCUSED ARE NOT LIABLE FOR THE CRIME OF EXTORTION UNDER SECTION 385 OF B.P.C., 1860. Extortion is defined in section 383 of the BPC. The elements fundamental to prove that a crime of extortion have been committed are that someone must have been dishonestly induced to deliver a valuable security 28 or property. The essence of offence of extortion is delivery of property. 29 Section 385 of the BPC prescribes the punishment for the crime of an attempt to extortion. Essential to proving that a crime of attempt to extortion has been committed is showing that there was an attempt to dishonestly induce a person to deliver a valuable security 30 or property. It is also required that the threat made to the person must be one that may cause fear of injury. 3.1 THE ACCUSED HAD NO REASON TO THREAT MISS NAIKA In the present case the threat was two random calls from public booths which could have been committed by anybody. Threats to finish the movie cannot be classified under extortion as there was no attempt to extort anything whatsoever, there were no demands made, except that of finishing a movie for which appropriate steps had been taken. Even if the prosecution s story of a body double is to be believed, it evades common sense as to why would then be a mention made of completing the shooting in the phone call. 28 Section 30 B.P.C 29 Vishnu Shiv Ram Bhoir AIR 1979 SC 1943 30 Dhananjay vs State of Bihar, (2007) 14 SCC 768

10 The caller was not appropriately aware of exigent circumstances in the case. It is submitted that the act of calling Miss Naika on 16 th of February 2014 is one that would cause more harm than good for the defendant. If the prosecution s story is to be believed a body double had been used to finish the movie, then there is no meaning in threatening Ms Naika to finish the movie would confound any reasonable man. 3.2 THAT THERE IS REASONABLE DOUBT AS TO GUILT OF ACCUSED. Reasonable Doubt is a fair doubt based upon reason and common sense which would permit a reasonable man to come to a conclusion. It must grow out of evidence in the case. 31 It is a well settled position in law 32 that the standard of judging reasonable differs from case to case and must be prudent. No man can be convicted where theory of his guilt is no more likely then the theory of his innocence. 33 Therefore, there are two alternate scenarios which are put forth for consideration- 3.2.1 A THIRD PARTY MAY HAVE BEEN INVOLVED It is respectfully submitted that it was not only Mr s Saba and Jaimil interest that the movie be completed. As stated in the facts of the case, Mr Saba had borrowed heavily from banks and creditors. It is also a part of the facts that Mr Saba was being pressurized to complete the movie as soon as possible. It must be brought to the notice of the honorable court that Mr Saba had only borrowed money from others. 31 State of Punjab vs Sukhchain Singh AIR 2009 SC 1542 32 Gurbachan Singh vs Satpal Singh AIR 1990 SC 209 33 Emp. V Shivdas Omkar 15 BLR 515

11 Had a permanent injunction been granted, Mr Saba would most probably go bankrupt and his creditors would be left empty-handed. It is not unreasonable to assume that, the very same creditors and financiers who had been pressurizing Mr Saba would could try to scare Naika. 3.2.2 MISS NAIKA IS CREATING A FALSE CASE It is submitted that, it was clear from Naika s conduct that she never intended to finish the film. Being initially reluctant to take the film, after she took it, she started looking for excuses to not shoot. Even though her public stand was one of not working with anti-social elements she had completed the majority of a movie with a person convicted of possession and use of drugs and a person who had already spent a year and a half in jail for crimes under TADA and Arms Act. It is an established position in law that when charged with an act like TADA the presumption is that of the guilt of the accused unless proven innocent. Therefore, even when the contract would have been signed Panna Boy was a terrorist. Miss Naika s acts point towards an attempt of false publicity. It is therefore clear that the aforementioned situations are not only feasible but probable too. It is undeniable that the said inference is obtained from the same set of facts and chain of events. If the impact of evidence is to create a doubt then the accused has not been proved guilty. 34 Only proof beyond reasonable doubt can be a ground for conviction 35. In the present case, the doubts arising are actual and substantial in nature and arise from the evidence of the case 36. 34 26 CriLj 782 35 State of Kerela vs Bahuleyan (1986) 4 SCC 124 36 Ramakant Rai v Madan Rai (2003) 12 SCC 1995

12 There is a reasonable probability that the accused are not guilty of any crime. It is therefore clear that the prosecution has not established its case beyond reasonable doubt 37. 37 Iqbal Moosa Patel v. State of Gujrat, (2011) 2 SCC 198

13 4. THE ACCUSED MR. SABA, MR. JAIMIL AND MR. PANNA BOY ARE NOT LIABLE FOR DEFAMATION AS DEFINED UNDER SECTION 501 AND 502 OF THE B.P.C.1860 Section 499 provides that for a matter to be defamatory there must be an imputation which must be made with 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 i.e. offence of defamation is harm caused to the reputation of a person. 38 The person making such imputation should have had knowledge or reasons to believe that the same will harm reputation of others. 39 4.1 MS. NAIKA IS ESTOPPED UNDER SECTION 115 OF EVIDENCE ACT, 1872 As per the law of estoppel 40, once a representation is made by one party and other party acts on that representation and makes an investment and that the first party resiles, such act of resilience cannot be fair and reasonable. 41 It is an established law that when one person by his declaration intentionally permitted another person to believe a thing to be true and to act upon such belief, he shall not be allowed, in any suit or proceeding concerning both the parties to deny the truth of that thing. 42 Further to apply 38 Jefferey J. Diermeier v. State of WB (2010) 3 SCC (Cri) 138 39 Chief Education Officer, Salem v. KS Palanichamy, (2012) 2 MWN (Cri) 354 (Mad); N. Sathya v. V Sekar, (2009) MWN (Cri) 266 (Mad). 40 Section 115 of BPC, 1908 41 LML ltd Vs State of U.P., (2008) 3 SCC 128 42 Section 115 of evidence Act, 1872

14 for estoppel all that is required is that one party must have relied upon the representation made to him and must have changed or altered his position by relying on such representation. 43 In the present case facts are very much clear on the point that Mr. Saba had borrowed heavily and had invested a lot of money on the lead actress Ms. Naika. 44 Further, Ms. Naika had prior knowledge of the fact that a criminal proceeding was already pending in Supreme Court of Barata and there existed a fair chance of acquittal or conviction of Mr. Panna before the release of movie, and knowingly she accepted to work in the movie Hit Factory. Herby, it is submitted that after considering the aforementioned facts it is evident that Ms. Naika should be estopped from dissociating herself from the movie and using such claims in the present trial. Thus Ms. Naika is not entitled to sue for defamation because of the fact that she voluntarily agreed to work in the movie and there lies no case of defamation under section 501 and 502 of BPC, 1908. 4.2 THE IMPUTATION FALLS WITHIN THE EXCEPTION 9 OF SECTION 499 OF B.P.C. Imputation on the character of another made in good faith 45 by a person for the protection of his or others interest does not amount to defamation under section 499 of BPC. 46 The expression 43 Delhi Cloth and Genreal Mills vs Union of India, AIR 1987 SC 2414 44 5 of Moot proposition 45 Good faith - Section 52 of BPC 46 9 th exception of section 499 of BPC

15 "good faith" indicates that lack of good faith of defendant has been made a part of the offence which the prosecution has to establish beyond reasonable doubt. 47 Further, it has been stated that in any transaction of business a person has a right to use language bona fide, which is relevant to that business and in due regard to his own interest makes it necessary, even if it is injurious or painful to another. 48 In the present case, Mr. Saba had borrowed heavily and invested a lot of money on the movie Hit Factory vis-à-vis Ms. Naika. Ms. Naika s act of dissociating herself from the movie is a clear violation of her legal obligation towards Mr. Saba. 49 After investing a huge sum of money for completion of the movie it became necessary for the interest of all to complete the movie and release it as soon as possible. There is neither any intent on part of the defendants to cause harm to the reputation of the complainant nor can we see any actual harm done to her reputation. 50 47 Supra 43 48 Kanwal lal v. State of Punjab, AIR 1963 SC 1317 49 Supra 4. 50 S. Khushboo Vs. Kanniammal and Anr, AIR 2010 SC 3196; Raul Fernandes vs Naren Dossa, (1999) 3 Mah LJ 938

16 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. The accused are not liable to be punished for the offence of criminal conspiracy under Section 120 B of the I.P.C. read with Section 34 2. The accused are not liable to be punished for the offence of attempt to extortion under Section 385 of the I.P.C. 3. The accused are not liable to punished for the offence of defamation under Section 501 & 502 of the B.P.C. 4. The accused Mr. Panna Boy is not liable for the offence of violation of conditions of remission of sentence under section 227 of the B.P.C. 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 Defence)