Memorial on behalf of Appellant (State of Erewhon)

16th K.K Luthra Moot Court Competition, 2020 1672

________________________________________________________________

IN THE HON’BLE EREWHON HIGH COURT

UNDER SECTION 377 OF THE CODE OF CRIMINAL PROCEDURE

________________________________________________________________

APPELLATE JURISDICTION

______________________________________________________________

IN THE MATTER OF
APPEAL Nos. 10 & 11

STATE OF EREWHON .…………………. APPELLANT

V.

ELIZABETH …………………… RESPONDENT

ALONGWITH

APPEAL Nos. 12 & 13

ELIZABETH …………………....... APPELLANT

V.

STATE OF EREWHON …………………....... RESPONDENT

  Memorial on behalf of Appellant (State of Erewhon)

TABLE OF CONTENTS

SR No. PARTICULARS PAGE NO.

1. Index of authorities 3

2. Statement of Jurisdiction 5

3. Statement of facts 6-8

4. Statement of issues 9

5. Summary of Pleadings 10

6. Arguments advanced 11-21

7. The prayer 22

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  Memorial on behalf of Appellant (State of Erewhon)

INDEX OF AUTHORITIES

1) Acts referred to: -

i. The Indian Penal Code, 1860
ii. The Code of Criminal Procedure, 1973
iii. The Constitution of India, 1950
iv. The Evidence Act, 1872

2) Books referred to:-

i. The Indian Penal Code, 1860 Ratanlal & Dhirajlal, 35th Edn, 2017
ii. The Indian Evidence Act, 1872 Ratanlal & Dhirajlal, 26th Edn, 2017
iii. The Code of Criminal Procedure, 1973 Ratanlal & Dhirajlal, 27th Edn, 2019
iv. K.N. Chandrashekharan Pillai, 6th Edn,
2018
v. Indian Constitutional Law M.P Jain, 8th Edn, 2018
vi. Introduction to The Constitution of India D.D Basu, 23rd Edn, 2018

3) Cases relied upon: -

i. Lalita Kumari v. State of U.P, (2014) 2 SCC 1
ii. Magraj Patodia v. R. K. Birla and Ors., (1970) 2 SCC 880
iii. Pooran Mal v. The Director of Inspection (Investigation), New Delhi & Ors. (1974) 1
SCC 345
iv. Harichandran v. State of TN, 1997 CrLJ 41 (Mad)
v. CBI v. R.S. Pal, (2002) 5 SCC 82
vi. Dinesh Dalmia v. CBI, (2007) 8 SCC 770
vii. Yashwant Sinha & Ors. v. CBI & Ors., (2019) 6 SCC 1
viii. The State of Bombay v. Kathi Kalu Ogham & Ors., AIR 1961 SC 1808
ix. State of UP & Ors v. Sunil & Ors., (2017) 14 SCC 516

3) Names of websites referred to :-

i. www.manupatra.com
ii. www.scconline.com
iii. www.indiatimes.com
iv. www.supremecourtofindia.nic.in
v. www.bombayhighcourt.nic.in
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  Memorial on behalf of Appellant (State of Erewhon)

vi. www.livelaw.in

4) List of Abbreviations:-
i. AIR All India Reporter
ii. SCC Supreme Court Cases
iii. CrLJ Criminal Law Lournal

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  Memorial on behalf of Appellant (State of Erewhon)

STATEMENT OF JURISDICTION
.

Court of Erewhon challenging the decision

of the Pre-trial and Trial Hearings.

of Criminal Procedure. This Section empowers the State to instruct the Prosecutor to present an appeal
in case of inadequacy of its sentence under cl (1).

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  Memorial on behalf of Appellant (State of Erewhon)

STATEMENT OF FACTS

1. Elizabeth Brown joins the offices of Brown, Fitch & Gump in the summer of 2018. The firm
is a leading publishing house in the city-State of Erewhon. It runs numerous dailies and
magazines in English. Elizabeth is the daughter of the founding partner of the firm, Jack
Brown. She joined the firm after completing her Journalism degree. Diana lands a job at the

pen.
2. being new to the firm, is made part of a
strategy team set up in the firm to chart expansion plans. The firm sought to expand its digital
footprint in the IT age.
3. ck

available on a user-friendly digital platform and rake in subscriptions. The firm plans on
making available exclusive content to members. The firm lags behind its competitors and sets
June, 2019 as deadline to release a beta version of the app.
4.
iability of any
of her ideas. Desperate, she turns to her brilliant friend, Diana.
5. Meanwhile, Diana was a copy-
ioned her
thoroughly about the business.
6. Diana invited her over for dinner at her house the same evening. When Elizabeth went to
Diana's house that evening, she spent some time going around the place and came across a
stack of papers with the top page mar -it. After tea, Elizabeth went
back to the room on the pretext of going to the bathroom. Realizing that she hadn't told her
where the bathroom was, Diana went to help her friend, and saw her peering over the papers
with a phone. Startled, Elizabeth made some excuse and went off to the bathroom, which was
three doors down.
7. On June 1, 2019 a beta version of the BFG Reader App was released on all platforms. It
received good reviews across the board. One of the most well received aspects was a series of
vignettes on the App that were written from the perspective of an LGBTQ woman dealing with

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  Memorial on behalf of Appellant (State of Erewhon)

Diana filed a complaint for theft against Elizabeth and BFG.

8. The first thing that the investigating team did was to search Elizabeth's house to find out if
there were copies of Diana's papers there, and seize her phone and other digital devices. They
did not get a prior warrant for this citing a possibility of Elizabeth destroying evidence on her
phone and computers, and raided her house on the morning of June 2.
9. Elizabeth cooperated with the search. She told the police that she owned one mobile phone
and one laptop computer, and handed both devices over. Both devices were locked. The police
searched the house but found no copies of Diana's writing, or any other incriminating writings
for that matter. On the same day, BFG offices were raided by the police. They searched only
Elizabeth's office but found no papers there either. The police seized one desktop computer,
which was also locked by a password.
10. The police then sent these digital devices for forensic analysis. The Forensic cyber expert ran
a series of tests and was able to discern the following in their Report dated August 15, 2019:
(i) digital devices seized from Elizabeth's house were registered in her name, while the desktop
seized from BFG offices was not; (ii) all devices were locked and required passwords/
biometric information for access; (iii) the camera could be used without unlocking the phone
and provided a thumbnail depiction of the last picture taken. This photograph appeared to be
of a printout with a post-it with some marking on top.
11. On August 30 2019, Elizabeth was called in for questioning. She admitted that she went to
Diana's house on May 19, 2019 and saw some printouts there. But she denied that she made
any copies of any writings by Diana or other persons. She also refused to give passwords for
any of the digital devices seized from her home and office. She was allowed to leave after this,
but was asked to return on August 31.
12. When Elizabeth came for questioning again on August 31, she was told to give her fingerprints
on a scanning pad that recorded them. It was made plain to her that she had no choice in the
matter.
13. The police used these fingerprints to map them on to dummy fingers and then
used them to unlock the digital devices. They found photographs of some printouts on her
phone. The photos matched some printouts handed over & seized from Diana, who confirmed
that these pictures had been taken by Elizabeth without her consent.
14. The police obtained duly certified copies of the photographs on September 5,
2019. The prosecutor's filed a case against Elizabeth on September 7, 2019 in the District Court
of Erewhon. She was prosecuted under Section 380 of the Erewhon Penal Code (EPC)
punishing Theft in a Dwelling House and Section 411 punishing the receipt or retention
of stolen property. The court issued a summons to Elizabeth, asking her to appear on September
9 for a pre-trial hearing.

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  Memorial on behalf of Appellant (State of Erewhon)

15. On September 9, the court heard arguments on the admissibility of the phone, and printouts
obtained from it in evidence. It agreed with Elizabeth's counsel that not only was the search
illegal, but also that her client had been illegally coerced into giving fingerprints. Since the
phone was accessed using these fingerprints and the photos were obtained from the said phone,
they had to be excluded for being fruits of the poisonous tree.
16. At the same time, the court rejected the argument that the prosecution had to file a copy of the
messages exchanged between Elizabeth and Diana that were found on the former's phone,
which messages had not been filed as part of the initial case record. The prosecutor invoked
Sections 173 and 207 of the Erewhon Criminal Procedure Code, which required the

agreed with the prosecution.

17. Accordingly, the pre-trial court passed the following order: (i) Elizabeth's
fingerprints and all derivative evidence were excluded from evidence; (ii) The seizure was not
bad for want of warrant (iii) Since the text messages had not been relied upon by the prosecutor,
the same were not part of the record and could not be referred to during trial. The case was
posted before a different judge for trial on October 15.
18. After the trial, the Court found that the prosecution had proved that Elizabeth
went to Diana's house on May 19, 2019, had specifically gone to the room where the papers
were, and but for being found by Diana at the time, she would have moved the papers to take
them. It ruled that the information contained in a document could not be the subject of theft,
and thus remembering the contents of a document, or taking a photograph of a document, was

19. On November 15, Elizabeth was found guilty of an attempt to commit the offence punishable
under Section 380 EPC. The sentencing hearing was fixed for November 17, 2019. For her
conviction under Section 511 EPC read with Section 380 EPC, Elizabeth was sentenced to 2
years in prison and a fine of 10,000 Erewhon Dollars, payable as compensation to the victim.
She was released on bail the same day.

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  Memorial on behalf of Appellant (State of Erewhon)

STATEMENT OF ISSUES

1. Whether the Pre -

derivative evidences were to be excluded from evidence?

2. Whether the Trial Court erred in holding that the Respondent was merely liable for an
attempt to commit theft?

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  Memorial on behalf of Appellant (State of Erewhon)

SUMMARY OF PLEADINGS

1. Whether the Pre -

derivative evidences were to be excluded from Evidence?

Yes. It is humbly submitted by the Counsel on behalf of the Appellant that the pre-trial ruling
was bad in law. The Court shall admit evidence on the factor of relevance and not legality of
obtaining the same.

2. Whether the Trial Court erred in convicting Elizabeth only for an attempt to commit theft?

Yes. It is humbly submitted by the Counsel on behalf of the Appellant that the Appellant was
convicted for a lesser offence and the State has sufficiently discharged its burden of proving
theft.

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  Memorial on behalf of Appellant (State of Erewhon)

ARGUMENTS ADVANCED

1. Whether the Pre -

evidences were to be excluded from evidence?

The pre-trial Court held that: -

A. were to be excluded from evidence

B. The Seizure was not bad for want of warrant

C.
of the record and could not be referred to at Trial.

thus: -

1. Bona Fide Action by Police

Firstly, it is submitted on behalf of the State of Erewhon that, at the outset, the Police has acted in
accordance with Law. A contrary and negative image has been painted and presented to this
Lalita Kumari
v. State of U.P [(2014) 2 SCC 1], the Apex Court ruled the following:

ation since there was no safeguard of obtaining

permission from the Magistrate to commence an investigation, the said procedure of recording
first information in their books along with the signature/seal of the informant, would act as an
"extremely valuable safeguard" against the excessive, mala fide and illegal exercise of
investigative powers by the police.

40. The use of the word "shall" in Section 154(1) of the Code clearly shows the legislative
intent that it is mandatory to register an FIR if the information given to the police discloses the
commission of a cognizable offence.

83. The object sought to be achieved by registering the earliest information as FIR is inter alia
twofold: one, that the criminal process is set into motion and is well documented from the very
start; and second, that the earliest information received in relation to the commission of a
cognizable offence is recorded so that there cannot be any embellishment etc., later.

111. Registration of FIR is mandatory under Section 154 of the Code, if the information
discloses commission of a cognizable offence and no preliminary inquiry is permissible in such

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  Memorial on behalf of Appellant (State of Erewhon)

Also, according the Section 23 and 29 of Police Act, the Police are bound by a legal duty to
exercise powers conferred upon them in respect of cognizable offences. Accordingly, in the
present case, the Erewhon Police has registered an F.I.R at the instance of the Complainant,
whereby, on information received, a cognizable offence, as defined under the Code of Criminal
procedure of Erewhon was disclosed. Any allegation of mala fide exercise of power in this regard
is untenable.

Secondly, it is submitted that the Pre-trial ruling on the validity of seizure was in consonance with
Law. It would be desirous to apprise the Court of the relevant provisions in respect of Search and
Seizure.

ng an
investigation has reasonable grounds for believing that anything necessary for the purposes of
an investigation into any offence which he is authorised to investigate may be found in any
place within the limits of the police station of which he is in charge, or to which he is attached,
and that such thing cannot in his opinion be otherwise obtained without undue delay, such
officer may, after recording in writing the grounds of his belief and specifying in such writing,
so far as possible, the thing for which search is to be made, search, or cause search to be made,
for such thing in any place within the limits of such station.

(2) A police officer proceeding under sub-section (1), shall, if practicable, conduct the search
in person.

(3) If he is unable to conduct the search in person, and there is no other person competent to
make the search present at the time, he may, after recording in writing his reasons for so doing,
require any officer subordinate to him to make the search, and he shall deliver to such
subordinate officer an order in writing, specifying the place to be searched, and so far as
possible, the thing for which search is to be made; and such subordinate officer may thereupon

According to Section 102

of Police Officer to seize certain property -

(1) Any police officer may seize any property which may be alleged or suspected to have been
stolen, or which may be found under circumstances which create suspicion of the commission
of any offence.

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  Memorial on behalf of Appellant (State of Erewhon)

(2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith
report the seizure to that officer.

In respect of the same, it is submitted that the Police Officer making the search without a warrant
must have reasonable grounds for believing that: -

a) Any specific thing necessary for the purposes of the investigation may be found in the
place; and
b) Such thing, in his opinion, cannot otherwise be obtained without undue delay, i.e., in his
opinion, it would be too late before a search warrant is obtained from a Magistrate.

The Police have rightly conducted a search at the earliest instance possible and have acted in a
bona fide manner and
seized her phone and other digital devices without a warrant in view of the abovementioned
possibilities. Hence, it is in keeping view of the same that the seizure was held not be bad in Law.

2. Does furnishing fingerprint amount to violation of Art. 20(3)?

same: -

i) It is a right available to a person accused of an offence;

ii) It is a protection from compulsion to be a witness;
iii) It is protection against such compulsion resulting in his giving evidence against himself.

Article 20(3) is directed against self-incrimination by an accused. It must mean conveying

information based upon the personal knowledge of the person giving the information and cannot
include a mere mechanical process of producing documents in Court which may throw light on
any point in controversy, but which do not contain any statement of the accused based on his
personal knowledge. it has to be a physical, objective act and not
the state of mind of the person making the statement, except where the mind has ben conditioned
by some extraneous process so as to render the making of the statement involuntary and hence
deemed extorted. The mere asking by a Police Officer investigating a crime against a certain
individual to do a certain thing is not compulsion within the meaning of Art 20(3).

are neither statements made by her in respect of the alleged offence of theft, nor do they
tantamount to extracting or extorting any information from her that reflect on her mental state.
Also, there has been no compulsion whatsoever from the Police for the purpose of taking

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  Memorial on behalf of Appellant (State of Erewhon)

fingerprints and in any case, the documents in question are also readily available with the Police

20(3).

In The State of Bombay v. Kathi Kalu Oghad [ AIR 1961 SC 1808], the Apex Court observed
thus: -

written statements, but not in the larger sense of the expression so as to include giving of thumb
impression or impression of palm or foot or fingers or specimen writing or exposing a part of
the evidence' in the latter sense could not have been within the contemplation
of the Constitution-makers for the simple reason that - thought they may have intended to protect
an Accused person from the hazards of self-incrimination, in the light of the English Law on the
subject - they could not have intended to put obstacles in the way of efficient and effective
investigation into crime and of bringing criminals to justice. The taking of impressions or parts
of the body of an Accused person very often becomes necessary to help the investigation of a
crime. It is as much necessary to protect an Accused person against being compelled to
incriminate himself, as to arm the agents of law and the law courts with legitimate powers to

investigation to give his finger impression or signature or a specimen of his handwriting, he is

not giving any testimony of the nature of a 'personal testimony'. The giving of a 'personal
testimony' must depend upon his volition. He can make any kind of statement or may refuse to
make any statement. But his finger impressions or his handwriting, in spite of efforts at
concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus,
the giving of finger impressions or of specimen writing or of signatures by an Accused person,
though it may amount to furnishing evidence in the larger sense, is not included within the

The aforesaid case has been relied upon by the Supreme Court in State of UP & Ors v. Sunil
& Ors., (2017) 14 SCC 516

3. What Evidence is admissible?

Thirdly, it is submitted that The Pre-trial ruling was bad in law to the extent that it held that the

Law of Evidence in India is based on the factor of relevance. The power of Courts to admit
evidence is when its probative value indicates its relevance.

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  Memorial on behalf of Appellant (State of Erewhon)

The Indian Evidence Act has an entire chapter, i.e., Chapter II dedicated to the relevancy of facts,
which specifies that the primary criteria for determining the admissibility of evidence in courts is
its relevance. What is envisioned under the Act for evidence to be admissible is its relevance and
not legality.

It is humbly submitted that according to S 5 of the Evidence Act, 1872,

in any suit or proceeding of the existence or non-existence of every fact in issue and of such other

Accordingly, it is submitted that the Act is a special Act, whose purpose is to consolidate, define
and amend the law of evidence, no provision of which is challenged as violating the Constitution,
permits relevancy as the only test of admissibility of evidence and the same Act or any other
similar law in force does not exclude such relevant evidence, its exclusion is contrary to Law.
What is relevant cannot become irrelevant merely because it was unearthed in course of an illegal
ces in order
to prevent destruction and tampering of evidence. The documents in question are relevant
evidence as the entire case pertains to the alleged theft of the same. Also, some of the documents
recovered from the accused have been identified to be those that were in the possession of the
Complainant. Also, it is not the case of the Respondent that the photos were not taken from her
phone. The photos on her phone are relevant to the issue at hand. There is no dispute as to the
source of the same and the subject matter of the same being the alleged stolen content. Neither is
it the case of the Respondent that the documents have been tampered. There is no scope for an
argument that the Respondent was made to incriminate herself, as the photos existed on her phone
prior to any charges levelled against her and there was neither compulsion to speak or confess.

The following decisions are sought to be relied upon in furtherance of the said argument: -

a) In Magraj Patodia v. R. K. Birla and Ors., [(1970) 2 SCC 880], the Court dealt with the
admissibility in evidence of two files containing numerous documents produced on behalf of
the election petitioner. Those files contained correspondence relating to the election of
respondent No. 1. The correspondence was between respondent No. 1 the elected candidate
and various other persons. The witness who produced the file said that respondent No. 1
handed over the file to him for safe custody. The candidate had apprehended raid at his
residence in connection with the evasion of taxes or duties. The version of the witness as to
how he came to know about the file was not believed by this Court. This Court said that a
document which was procured by improper or even by illegal means could not bar its
admissibility provided its relevance and genuineness were proved. It follows hence, that even
rregularly, the same cannot
be disregarded only on the account of the manner of their procurement.
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  Memorial on behalf of Appellant (State of Erewhon)

b) In Pooran Mal v. The Director of Inspection (Investigation), New Delhi and Ors. [(1974)
1 SCC 345], the Apex Court held that; -

which prevailed in English law, and courts in India and in England have consistently refused
to exclude relevant evidence merely on the ground that it is obtained by illegal search or
seizure. In Barindra Kumar Ghose and Ors. v. Emperor I.L.R. 37 Cal 467 the learned Chief
Justice Sir Lawrence Jenkins says at page 500 : "Mr. Das has attacked the searches and has
urged that, even if there was jurisdiction to direct the issue of search warrants, as I hold there
was, still the provisions of the Criminal Procedure Code have been completely disregarded.
On this assumption he has contended that the evidence discovered by the searches is not
admissible, but to this view I cannot accede. For without in any way countenancing disregard
of the provisions prescribed by the Code, I hold that what would otherwise be relevant does
not become irrelevant because it was discovered in the course of a search in which those
provisions were disregarded. As Jimutayahana with his shrewd commonsense observes-"a fact
cannot be altered by 100 texts," and as his commentator quaintly remarks: "If a Brahmana be
slain, the precept 'slay not a Brahmana' does not annul the murder." But the absence of the
precautions designed by the legislature lends support to the argument that the alleged
discovery should be carefully scrutinized."

In Emperor v. Allahdad Khan 35 Allahabad, 358 the Superintendent of Police and a Sub-
Inspector searched the house of a person suspected of being in illicit possession of excisable
articles and such articles were found in the house searched. It was held that the conviction of
the owner of the house under Section 63 of the United Provinces Excise Act, 1910, was not
rendered invalid by the fact that no warrant had been issued for the search, although it was
presumably the intention of the legislature that in a case under Section 63, where it was
necessary to search a house, a search warrant should be obtained beforehand. In Kuruma v.
The Queen [1955] A.C. 197 where the Privy Council had to consider the English Law of
Evidence in its application to Eastern Africa, their Lordships propounded the rule thus : "The
test to be applied, both in civil and in criminal cases, in considering whether evidence is
admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court
is not concerned with how it was obtained."
Some American cases were also cited before the Privy Council. Their Lordships observed at
p. 204 thus: "Certain decisions of the Supreme Court of the United States of America were
also cited in argument. Their Lordships do not think it necessary to examine them in detail.
Suffice it to say that there appears to be considerable difference of opinion among the judges

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  Memorial on behalf of Appellant (State of Erewhon)

both in the State and Federal courts as to whether or not the rejection of evidence obtained by
illegal means depends on certain articles in the American Constitution. At any rate, in
Olmstead v. United State (1828) 277 U.S. 438, the majority of the Supreme Court were clearly
of opinion that the common law did not reject relevant evidence on that ground." In Kuruma's
case, Kuruma was searched by two Police Officers who were not authorised under the law to
carry out a search and, in the search, some ammunition was found in the unlawful possession
of Kuruma. The question was whether the evidence with regard to the finding of the
ammunition on the person of Kuruma could be shut out on the ground that the evidence had
been obtained by an unlawful search. It was held it could not be so shut out because the finding
of ammunition was a relevant piece of evidence on a charge for unlawful possession. In a later
case before the Privy Council in Herman King v. The Queen [1969] (1) A.C. 304 which came
on appeal from a Court of Appeal of Jamaica, the law as laid down in Kuruma's case was
applied although the Jamaican Constitution guaranteed the Constitutional right against search
and seizure in the following provision of the Jamaica (Constitution) Order in Council 1962,
Schedule 2, Section 19 "(1) Except with his own consent, no person shall be subjected to the
search of his person or his property or the entry by others on his premises. "(2) Nothing
contained in or done under the authority of any law shall be held to be inconsistent with or in
contravention of this section to the extent that the law in question makes provision which is
reasonably required...for the purpose of preventing or detecting crime...."

In other words, search and seizure for the purposes of preventing or detecting crime reasonably
enforced was not inconsistent with the Constitutional guarantee against search and seizure. It
was held in that case that the search of the appellant by a Police Officer was not justified by
the warrant nor was it open to the Officer to search the person of the appellant without taking
him before a Justice of the Peace. Nevertheless, it was held that the Court had a discretion to
admit the evidence obtained as a result of the illegal search and the Constitutional protection
against search of person or property without consent did not take away the discretion of the
court. Following Kuruma v. The Queen the court held that it was open to the court not to admit
the evidence against the accused if the court was of the view that the evidence had been
obtained by conduct of which the prosecution ought not to take advantage. But that was not a
rule of evidence but a rule of prudence and fair play. It would thus be seen that in India, as in
England, where the test of admissibility of evidence lies in relevancy, unless there is an
express or necessarily implied prohibition in the Constitution or other law evidence obtained

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  Memorial on behalf of Appellant (State of Erewhon)

This precedent reiterates the test of relevance of evidence holds that the sole criteria in
determining the admissibility of evidence in respect of an offence is its connection to the
offence in question and not its manner or procurement by the investigative authorities.

The aforesaid case has also been relied on by the Apex Court in: -
Yashwant Sinha & Ors. v. CBI & Ors., (2019) 6 SCC 1

4. Documents relied upon forming part of the case record

According to Section 173(2)(i):

police station shall forward to a

Magistrate empowered to take cognizance of the offence on a police report, a report in the form
prescribed by the State Government, stating

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody under section 170;

According to S 173(5):

When such report is in respect of a case to which section 170 applies, the police officer shall
forward to the Magistrate along with the report

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other
than those already sent to the Magistrate during investigation;

(b) the statements recorded under section 161 of all the persons whom the prosecution proposes
to examine as its witnesses.

In CBI v. R.S. Pal, [(2002) 5 SCC 82]

S 173(5) is directory and not mandatory. However, in the present case, the report u/s 173(2)
has been accompanied by all the relevant documents as referred to u/s 173(5) as produced
hereinabove. The Respondent has not taken the specific plea of any prejudice caused to her on

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  Memorial on behalf of Appellant (State of Erewhon)

account of non-submission of the chat messages of herself and the complainant. Even
otherwise, the mere non-submission of all the documents cannot vitiate the Police Report.

This view has been taken by the Supreme Court in Dinesh Dalmia v. CBI [(2007) 8 SCC 770]

2. Whether the Trial Court erred in convicting Elizabeth only for an attempt to commit theft?

anything, whether animate or inanimate, out of the possession of the any person without that

The following are the ingredients of Theft: -

a) Dishonest intention to take anything

b) Such thing must be animate or inanimate
c) Such thing must be taken out of the possession of another person
d) Such thing should be taken without the consent of that person
e) There should be some moving of that thing in order to accomplish the taking of it.

The following propositions are relevant to note in this regard: -

a) content/documents

It is submitted on behalf of the Appellant that, from the given circumstances, Elizabeth was
part of the strategy team for the BFG Reader App. Elizabeth was made part of the team being
from the younger generation in hopes that she could help the firm tap the digital age and

of writing despite her Journalism degree. In contrast, Diana is brilliant at writing, but she lands
a job at the same firm on

-it.
After tea, Elizabeth went back to the same room on the pretext of going to the bathroom. Diana

same. Diana saw Elizabeth peering over the papers with her phone and also observed that
Elizabeth was startled on seeing her. Elizabeth made some excuse and proceeded to the
washroom by herself. It is to be noted that Diana did not tell Elizabeth where the washroom
was. Elizabeth went there by herself. This means that Elizabeth knew her way around the
house. The Respondent cannot take the view that she went around the house casually.

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  Memorial on behalf of Appellant (State of Erewhon)

b)

documents themselves. The pre-trial Court erred in holding that information contained in a
document cannot be a subject matter of theft and that remembering the content of a document
or taking a photograph of the document was not moving anything for the purposes of the
eous in Law. Information
contained in a document can be a subject matter of theft if it satisfies the conditions under S
378 of the Erewhon Penal Code. The data contained in a document, on being used, can cause
a wrongful loss or wrongful gain to a person, respectively. Secondly, the form in which such
data is obtained is irrelevant. Whether it is physical or replicated by remembering, it is capable

for the purposes of the act. The offence is completed when there is a dishonest moving of the
property, even though the property is not detached from that to which it is secured. In the
present case, the content is secured in the documents. The moment the data comes within the
knowledge of a person who accesses it unauthorizedly, i.e., without the consent of the owner,
the offence is complete.

c)
Thirdly, it is clear the content of the documents was taken out of the possession of the
Complainant. As soon as the content was out of her exclusive possession and control, the

In Harichandran v. State of TN [1997 CrLJ 41 (Mad)], the Court observed that:

it that he has power to deal with it as owner to the exclusion of all other persons, and when the
circumstances are such that he may be presumed to inte
The Complainant had a pre - publication contract with another publisher. The documents in
question could have pertained to the same. Even though Diana could not publish with a rival
house, it could not be said that the content could not be subject matter of theft. Also, the
documents could be her personal writings or notes to self. The Appellant cannot rely on either

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  Memorial on behalf of Appellant (State of Erewhon)

d) That the content/documents were taken without her consent

Fourthly, it is abundantly clear that the content was taken from the Complainant without her
consent. Even though the Complainant shared some stories with the Respondent voluntarily, it
cannot be said that the act of theft was not committed. This is because the Respondent, once
becoming aware of the contents of the documents became interested in the same went back
specifically to that room and peered over the papers with the phone. Even if it is her contention
that she did not take pictures of the same, the content had come within the knowledge of the
respondent which was not authorized by the Complainant.

e) That there was some moving in order to complete the Act of taking.
In order to complete the offence of theft, there needs to be a final act of moving. It is reiterated
that in order to move such property for the purpose of taking, as envisioned under the Act, it is
sufficient that the property is detached from its source in the manner that it comes within the
knowledge or command of any unauthorized person. Though the information was not taken by
way of documents physically, once the Respondent came to know of the contents, the moving
is complete.

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  Memorial on behalf of Appellant (State of Erewhon)

PRAYER

In the light of facts stated, issues raised, arguments advanced and Authorities cited, the Counsel

a. That the Court declare that the Pre-trial ruling be modified to the extent that pictures taken
from
b. That the Respondent be convicted of theft in light of the evidence presented

interest of justice, equity and good conscience in the instant case.

And for this act of kindness, the Appellants shall be duty bound forever pray.

Respectfully submitted on behalf of the Appellant.

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