Moot court memorial on Constitutional Law, Study Guides, Projects, Research of Constitutional Law

Download Moot court memorial on Constitutional Law and more Study Guides, Projects, Research Constitutional Law in PDF only on Docsity! TEAM CODE:- LC-14 LEX COMMUNIQUE MOOT COURT COMPETITION, 2024 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION UNDER SECTION 374 ( 2) OF CRIMINAL PROCEDURE CODE CRIMINAL APPEAL NO. : 63/2024 IN CRIMINAL CASE NO. : 33/2024 IN THE MATTER BETWEEN Mr. SHANKAR JADHAV AGE 51 YEARS, Occ: BUSINESSMAN, RESIDING AT: FLAT NO. 101, SAGAR APARTMENTS, J.P. NAGAR ANDHERI (E), MUMBAI. ……….(APPELLANT) THE STATE OF MAHARASHTRA THROUGH M.I.D.C. POLICE STATION, AT ANDHERI, MUMBAI. ………(RESPONDENT) WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT COUNSELS APPEARING ON BEHALF OF APPELLANT LEXCOMMUNIQUE NATIONAL APPELLATE MOOT COURT COMPETITION, 2024 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO: _______/2024 IN CRIMINAL CASE NO. _____/2024 DISTRICT: -MUMBAI IN THE MATTER BETWEEN SHANKAR JADHAV ) …….(Appellant) VERSUS THE STATE OF MAHARASHTRA ) …….(Respondent) TABLE OF CONTENTS SR.NO PARTICULARS PAGE NO. 1. INDEX OF AUTHORITIES 2. LIST OF ABBREVIATIONS 3. STATEMENT OF JURISDICTION 4. STATEMENT OF FACTS STATEMENT OF CHARGES 5. STATEMENT OF ISSUES 6. SUMMARY OF ARGUMENTS 7. ARGUMENTS ADVANCED  Whether the present Appeal is maintainable before the 2 WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT LEXCOMMUNIQUE NATIONAL APPELLATE MOOT COURT COMPETITION, 2024 INTERNATIONAL CONVENTIONS ARTICLE REFERRED LIST OF ABBREVIATIONS SR.NO ABBREVIATIONS EXPANSIONS 1. & And 5 WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT LEXCOMMUNIQUE NATIONAL APPELLATE MOOT COURT COMPETITION, 2024 2. / Or 3. % Percentage 4. Art Article 5. CPC Civil Procedure Code 6. UNO United Nations Organisation 7. DPSP Directive Principles of State Policy 8. HC High Court 9. PIL Public Interest Litigation 10 Ors. Others 11. NGO Non-Government Organisation 12. SC Supreme Court 13. SCC Supreme Court Cases 14. SCR Supreme Court Reporter 15. SEC Section 16. U/S Under Section 17. UOI Union of India 18. F.R Fundamental Rights 19. V. Versus 20. WHO World Health Organisation 21. O.S Original Suit 22. W.P Writ Petition 23. POCSO Protection of Children from Sexual Offences Act 24. IPC Indian Penal Code 6 WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT LEXCOMMUNIQUE NATIONAL APPELLATE MOOT COURT COMPETITION, 2024 25. Cr. P.C Criminal Procedure Code 26. AIR All India Reporter 27. Anr. Another 28. Para Paragraph 29. No. Numbers 30. Hon’ble Honourable IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.: 63/2024 DISTRICT: - MUMBAI IN THE MATTER BETWEEN 7 WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT LEXCOMMUNIQUE NATIONAL APPELLATE MOOT COURT COMPETITION, 2024 The Court of the Hon’ble Session’s Judge, Andheri District hereby convicted the Appellant U/S 235(2) of Code of Criminal Procedure 1973, for the offense punishable U/S 302 of Indian Penal Code, and sentenced him to rigorous life imprisonment and also ordered him to pay the fine of Rs. 2000 /- The bail bond of the accused was canceled and surety was discharged. STATEMENT OF ISSUES 1. WHETHER THE PRESENT APPEAL IS MAINTAINABLE BEFORE THE HON’BLE HIGH COURT? 10 WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT LEXCOMMUNIQUE NATIONAL APPELLATE MOOT COURT COMPETITION, 2024 2. WHETHER THE FUNDAMENTAL RIGHTS OF MR. SHANKAR JADHAV HAS BEEN VIOLATED? 3. WHETHER THE HON’BLE SESSIONS COURT HAS ERRED IN CONVICTING THE ACCUSED IN THIS PRESENT MATTER? 4. WHETHER THE PRESENT MATTER SHOULD BE REMANDED BACK TO THE SESSIONS COURT FOR INVESTIGATION? SUMMARY OF ARGUMENTS 1. WHETHER THE PRESENT APPEAL IS MAINTAINABLE BEFORE THE HON’BLE HIGH COURT? 11 WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT LEXCOMMUNIQUE NATIONAL APPELLATE MOOT COURT COMPETITION, 2024 ARGUMENTS: - It is humbly submitted by the Counsels on behalf of the Appellant that the present appeal is maintainable before the Hon’ble High Court of Bombay under Section 374(2) of CrPC. 1973. Firstly, it is emphasized by the Counsel on behalf of the Appellants that the appeal is an absolute and statutory right for the aggrieved party, particularly when facing a sentence of imprisonment exceeding seven years, as specified in Section 374(2). Given the severity of the sentence and the doubts raised regarding the interpretation and application of legal principles in the impugned judgment, the appeal raises substantial questions of both law and fact. Moreover, it is incumbent upon the Appellate Court to critically examine the evidence and arrive at an independent determination regarding the appellant's guilt or innocence. Citing precedents and legal principles, the Counsel underscores the High Court's power to reappreciate evidence and suspend the execution of the sentence pending appeal, as provided under Sections 386(b) and 389(1) of the CrPC, respectively. Consequently, the appeal before the High Court is deemed maintainable, warranting a thorough review to ensure justice is served. 2. WHETHER THE FUNDAMENTAL RIGHTS OF MR. SHANKAR JADHAV HAS BEEN VIOLATED? ARGUMENTS: - The arguments on behalf of the Appellant in the case of Mr. Shankar Jadhav highlight egregious violations of fundamental rights, including the right to a fair trial and due process as guaranteed by Article 21 of the Indian Constitution. The miscarriage of justice resulting from flawed investigation and prosecutorial misconduct underscores the urgent need for compensation, in accordance with international standards outlined in the International Covenant on Civil and Political Rights. Despite India's ratification of the ICCPR, legislation for compensating victims of wrongful convictions remains lacking. The Appellant urges the Hon’ble Court to rectify these injustices by acknowledging the violations, addressing the miscarriage of justice, and providing just compensation to Mr. Jadhav. 12 WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT LEXCOMMUNIQUE NATIONAL APPELLATE MOOT COURT COMPETITION, 2024 reliability and credibility of the evidence presented. These substantial questions of law and fact warrant a thorough review by the High Court, thereby justifying the maintainability of the appeal. 4. Furthermore, it is incumbent upon the Appellate Court, being the final arbiter of fact, to critically examine the evidence. The Supreme Court has explicitly held that the appellate court must independently evaluate the evidence and extend the benefit of reasonable doubt to the accused if two views are plausible. Thus, the Hon’ble High Court bears the duty to meticulously assess the evidence on record and arrive at an independent determination regarding the appellant's guilt or innocence. 5. It was held in the State of Karnataka vs. Papanaika, that the High Court in case of appeal against conviction has full power to reappreciate evidence and come to a conclusion independently. But there should be a proper appreciation of evidence and the finding has to be recorded against each witness as to why the said witness is not being believed when he was believed by the Trial Court3. 6. It is a well-settled principle of law that the High Court being the final Court of fact should examine the evidence critically4. The Supreme Court has ruled that in an appeal against conviction, the appellate court itself has the duty to appreciate the evidence on the record and if two views are possible on the appraisal of evidence, the benefit of reasonable doubt has to be given to an accused5. 7. An appellant court may give every reasonable weight to the conclusion arrived at by the trial court but it must be remembered that an appellant court is duty bound in the same way as the trial court but it must be remembered that an appellant court is duty bound in the same way as the trial court to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on record to arrive at an independent finding regarding guilt or innocence of the convict6. An appellate Court fails to discharge one of its essential duties if it fails to appreciate the evidence on record and arrive at an independent finding based on appraisal of such evidence. 3 State of Karnataka vs. Papanaika 2004 Cr. L.J. 1727 (S.C). 4 Badam Singh vs. State of MP AIR 2004 SC 26. 5 Lal Mandi vs. State of West Bengal (1955) 3 SCC 603. 6 Ibid. 15 WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT LEXCOMMUNIQUE NATIONAL APPELLATE MOOT COURT COMPETITION, 2024 1.2 POWER OF THE APPELLATE COURT Section 386 (b) of the CrPC is reproduced as follows: - “(b) in an appeal from a conviction- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the Same;” 8. It is humbly submitted before the Hon’ble Court that as the prosecution has failed to prove its case beyond reasonable doubt and therefore, the Hon’ble High Court is well within its power to re-appreciate the evidence and reverse the finding and sentence as held in the impugned judgment thereby acquitting the accused of the charges u/s. 302 I.P.C. 9. Further, in view of section 389 (1) of CrPC the order of sentence in the impugned judgment ought to stand suspended. The section reads as “(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.” Therefore, the appeal pending before the High Court is well within its power to suspend the sentence of the convicted accused. 2. WHETHER THE FUNDAMENTAL RIGHTS OF Mr. SHANKAR JADHAV HAS BEEN VIOLATED? ARGUMENTS: - It is humbly submitted on behalf of the Appellant before this Hon’ble High Court that there has been a gross violation of the Fundamental Rights of Mr Shankar Jadhav. The Prosecution has miserably failed to prove their case beyond a reasonable doubt in the Hon’ble Sessions Court and the shreds of evidence presented by the Prosecution were not sufficient in the ordinary course of circumstance to adjudge the accused as guilty of murder 16 WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT LEXCOMMUNIQUE NATIONAL APPELLATE MOOT COURT COMPETITION, 2024 under section 302 of the Indian Penal Code, and the same will be established by the Counsel on behalf of the Appellant in four Folds. 2.1 VIOLATION OF FUNDAMENTAL RIGHTS 1. It has been rightly said in the words of William Blackstone “it is better that ten guilty persons escape than that one innocent suffer” This statement demonstrates that the prosecution should prove their case beyond reasonable doubt and there should be no margin of error in convicting the accused so that no innocent person should suffer from the wrongful imprisonment but in the present case the charges levied on accused has not been proven beyond reasonable doubt then too the accused has been sentenced to rigorous life imprisonment which is a gross violation of fundamental rights of Mr Shankar Jadhav. 2. It is pertinent to note that the Constitution of India guarantees Fundamental Rights to its every citizen of the nation, first and foremost is Equality before the Law under Article 14 of the Indian Constitution and the Right to life and personal liberty under Article 21 of the Constitution of India. Natural Justice as a part of Article 14: It is evident to note that the Natural Justice, is the rule against bias, and the right to a fair hearing is an integral part of Article 14. The Principle of Natural Justice helps in the prevention of miscarriage of Justice, These Principles also check the arbitrary power of the State.” (AK Kripak) 3. Article 21- No person shall be deprived of his life or personal liberty except according to procedure established by law. In the current case, both accused face identical charges supported by similar evidence presented by the Prosecution. However, due to deficiencies in the investigation process, the accused's defense and evidence were not adequately considered. This oversight has led to various adverse consequences, including financial implications and harm to the accused's well-being. 4. The repercussions encompass financial burdens and other detrimental effects, such as damage to health, psychological distress, and emotional harm. Additionally, there's a tarnishing of the accused's standing in society, harm to their reputation, and a loss of opportunities for livelihood and income. These consequences stem from wrongful prosecution and unjust incarceration, thereby violating the right to life and personal liberty, which inherently encompasses living with dignity. 17 WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT LEXCOMMUNIQUE NATIONAL APPELLATE MOOT COURT COMPETITION, 2024 14. In the present case, the prosecution failed to corroborate the evidence, to establish the chain of evidence, or present any circumstantial evidence, that lacks of judicial approach, non-application of mind, non-consideration, or improper consideration of material evidence inconsistencies with faulty reasoning such that amounts to perversity amounts to grave miscarriage of justice. Ayodhya Dube & Ors. v. Ram Sumar Singh, 15. Wrongful prosecution, as noted above, are the cases of miscarriage of justice where procedural misconducts - police or prosecutorial, malicious or negligent – resulted in the wrongful prosecution of an innocent person, who was ultimately acquitted, with a court making an observation or recording a finding to that effect. The underlying sentiment is that such a person should not have been subjected to these proceedings in the first place. 2.3 COMPENSATION 16. Public law remedy for miscarriage of justice on account of wrongful prosecution, incarceration, or conviction finds its roots in the Constitution of India. In such cases, it is the violation of fundamental rights under Article 21 (the right to life and liberty), and Article 22 (protection against arbitrary arrests and illegal detention, etc.) which includes the grant of compensation to the victim, who may have unduly suffered 36 detention or bodily harm at the hands of the employees of the State. (Law report) 17. There needs to be recompense for the years lost, for the social stigma, the mental, emotional, and physical harassment, and for the expenses incurred, etc. There needs to be compensatory assistance by the State to help the innocent victims of a miscarriage of justice, who have suffered through wrongful prosecution, to rehabilitate and adjust to life, and to reintegrate into society. 18. In the present case the Appellant has been deprived of living his life with dignity and wilfully, he is the victim of the wrongful prosecution which was caused by the few careless police officers during the investigation. Hence the Appellant demands for compensation for Rs 50, 000/- 19. Durga @ Raja v. State of Madhya Pradesh142 and Nandu @ Nandkishore v. State of Madhya Pradesh, where the Court held that appellants who are innocent and have 20 WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT LEXCOMMUNIQUE NATIONAL APPELLATE MOOT COURT COMPETITION, 2024 suffered because of poor investigation and tainted prosecution, deserve compensation from the State as there is vicarious liability present. 20. Emphasising the need to compensate the victims of wrongful arrests, incarceration etc. by awarding “suitable monetary compensation”, the Supreme Court in the case of Bhim Singh, MLA v. State of J & K & Ors. opined that the mischief, malice or invasion of an illegal arrest and imprisonment cannot just be “washed away or wished away” by setting free the person so arrested or imprisoned. The Court awarded a sum of Rs. 50,000/- as compensation for illegal detention but, it is noteworthy that it did not delve into the reasoning or mechanism of how this “suitable monetary compensation” was determined or should be determined in similar cases. Counsel on behalf of the Appellant urges this Hon’ble Court to grant or Compensate Mr. Shankar Jadhav of rupees 50,000 (Fifty thousand only). 2.4 INTERNATIONAL PERSPECTIVE 21. The International Covenant on Civil and Political Rights.The International Covenant on Civil and Political Rights 1966 (ICCPR‟) is one of the key international documents on miscarriage of justice. ICCPR discusses the obligation of State in cases of miscarriage of justice resulting in wrongful conviction. It requires the State to compensate the person who has suffered punishment on account of a wrongful conviction provided that the conviction was final, and was later reversed or pardoned on the ground of miscarriage of justice i.e. a new fact proving that the accused was factually innocent. Article 14(6) of ICCPR states: When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. (Emphasis Applied) 21 WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT LEXCOMMUNIQUE NATIONAL APPELLATE MOOT COURT COMPETITION, 2024 22. Article 9(5) states: Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. India ratified ICCPR in the year 1968 (with certain reservations) but is yet to comply with its obligations and enact legislation laying down the law for compensation of the victims of this miscarriage of justice. CONCLUSION 23. In conclusion, the arguments presented compellingly demonstrate the egregious violations of Mr. Shankar Jadhav's fundamental rights and the grave miscarriage of justice he has endured. The failure of the prosecution to prove guilt beyond a reasonable doubt, coupled with the negligence and misconduct during the investigation, underscores the urgent need for rectification. The absence of compensatory measures exacerbates the injustice suffered by Mr. Jadhav, contrary to international standards outlined in the ICCPR. Therefore, this Hon’ble Court must acknowledge these violations, rectify the miscarriage of justice, and provide just compensation to Mr. Jadhav. Justice demands not only the acquittal of the innocent but also the restoration of their dignity and reparation for the injustices endured. 22 WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT