The Code of Criminal Procedure moot

CRIMINAL PROCEDURE CODE MOOT

BEFORE THE HON’BLE HIGH COURT

Ms. DHANU

PETITONER

V.

STATE OF JAILISTAN

RESPONDENT

CASE CONCERNING

Section 156(3) of The Code of Criminal Procedure and Section 376/120b of Indian Penal
Code, 1960

SUBMITTED TO: SUBMITTED BY:

Mr. Mohammad Inam Sheikh Mansoor Kritika Gandhi

Asst. Professor B.B.A. LLB (Hons.)

SSLG 4th Sem

MEMORANDUM ON BEHALF OF RESPONDENT

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TABLE OF CONTENTS

TITLE PAGE NO.

1. List of abbreviation 3

2. Index of authorities 4

3. Statement of jurisdiction 5

4. Synopsis of Facts 6

5. Issues Raised 7

6. Summary of Arguments 8

7. Arguments Advanced 9-14

8. Prayer 15

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LIST OF ABBRIVATION

SC: SUPREME COURT

I.P.C: INDIAN PENAL CODE

CrPc: THE CODE CRIMINAL PROCEDURE

Art: ARTICLE

E.g. EXAMPLE

P.: PAGE

NO.: NUMBER

V. VERSES

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INDEX OF AUTHORITIES

STATUTES REFERRED:

 INDIAN PENAL CODE, 1860

 THE CODE OF CRIMINAL PROCEDURE,1973
 THE CONSTITUTION OF INDIA, 1950

CASES REFERRED:

 Sakiri Vasu vs State Of U.P. And Others Appeal (crl.) 1685 of 2007
 Dilawar Singh vs. State of Delhi JT 2007 (10) SC 585
 Punjab National Bank v. O.C. Krishnan and Ors., [2001] 6 SCC 569 
 Shivgonda Anna Patil and Ors. v. State of Maharashtra and Ors AIR (1999) SC 2281
  L. Hirday Narain v. Income Tax Officer, BareillyAIR (1971) SC 33
 Satbir Alias Satta vs State Of Haryana CRIMINAL APPEAL NO. 923-DB OF 2004
 Jagmalsingh v. State of Rajasthan 1980 Cr.L.R. 446 at P. 448(Raj)
 Tuka Ram And Anr vs State Of Maharashtra ,1979 SCR (1) 810
 State of West Bengal and others Vs. Committee for the Protection of Democratic
Rights, West Bengal and others 2010 (3) SCC 571
 Sakiri Vasu .Vs. State of U.P Appeal (crl.) 1685 of 2007

BOOKS REFERRED:

 T. BHATTACHAAYA, INIDAN PENAL CODE

 V.N SHUKLA , THE CONSTITUTION OF INDIA
 S.N. MISHRA ,CRIMINAL PROCEDURE CODE

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STATEMENT OF JURISDICTION

The counsel on behalf of the respondent has humbly rejects the jurisdiction on which the
appellant has approached the Hon’ble High Court under Article 226(1)1 of The Constitution.

1
Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in
relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose

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SYNOPSIS OF FACTS

1) Mr. Dhruv with his three other friends Mr. Sumer, Mr. Sukaru, Mr.Sanket and Mr.Sonu lived
in City of Jailpur , Jailistan and jointly carried the business of sale and purchase of properties
including commercial plots, buildings and land for housing schemes.
2) In October 2019 Mr. Sanket and Mr. Sonu sold the land in Basay and. Mr. Sumer and Mr.
Sukaru utilizing the power of attorney executed by Mr. Dhruv, sold the land acquired by them
at Bhankund and used the proceeds to their gain and did not share it with other friends
including Mr. Dhruv.
3) In month of November 2019 when, Mr. Dhruv who had gone to Kerla in connection with his
family business returned and came to know about the sale and misappropriation of proceeds,
he decided to sell the land purchased at Bhiwan and keep the money in bank account operated
jointly by him and his daughter.
4) This action annoyed the other partners in the business and so they filed a case against Ms
Dhanu and Mr Dhruv under sections 406, 420,465,467, 174 and 120b of New Penal Code on
30-12-2019. On 5-1-2020 sub Inspector with Havildar Sheru reached the residence of Mr.
Dhruv at night 11pm and did not find Mr.Dhruv there, but happen to see Ms. Dhanu and
arrested her on the ground that she was beneficiary of the proceeds of wrongful gain.
5) Police brought the arrestee Ms Dhanu and lodged in police station at Jailpur . There at about
4 A.M. Ms. Dhanu saw complainants Sukaru, Sanket and Sonu along with Inspector who were
talking to each other to teach a lesson to the arrestee Ms Dhanu. There after all four committed
rape on the arrestee Ms Dhanu.
6) After about 4 PM police took the arrestee to her residence to ask her mother as to where Mr
dhruv was. Moment Ms Dhanu entered the facilities, doors were closed by Sukaru and all
complainants entered the facilities from other gate and ravished the arrestee and threatened to
kill on the way .
7) She got herself medically examined and then filed a complaint about the acts that took place
during the police custody, under section 376 read with section 120B NPC with the
Superintendent of Police was transferred to the” Mahila Police Station” of the another area of
State of Jailistan .
8) Despite the serious offence of rape no FIR was lodged by the Mahila Police Station instead
Ms Dhanu was called many times to record her statement but was refused the copy of
statement on the pretext of non filing of FIR. Now the case is before the High Court of
Jailistan for hearing.

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9)

ISSUES RAISED

ISSUE 1:

Whether, the case is maintainable for issuing the directions by the high court for filing
the FIR against the police inspector and persons involved?

 Whether, Sukaru, Sanket and Sonu along with inspector to be convicted under
section 376 read with 120(b) of Indian Penal Code, 1960?

ISSUE 2:

Whether, CBI can probe at this stage into the investigation?

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SUMMARY OF ARGUMENTS

Issue 1:

Whether, the case is maintainable for issuing the directions by the high court for filing
the FIR against the police inspector and persons involved?

In the present case, the Mr. Dhruv with his 3 friends was jointly carry the business and
purchased the land. When Dhruv came back he sold the one land and deposited money in the
joint account with his daughter. After that all the partners filed the complaint against them
and police arrested his daughter Dhanu at 11pm. And around 4 am 3 of them along with
inspector raped her and the next day 4 pm they all threatened her on the way to not to inform
anyone otherwise she’ll killed were stated by her. And then they arrested her next day took
her to the magistrate also asked for 5 days remand as it was necessary to find out his father
and other investigation and also did her medical examination. The SP directed to lodged the
complaint in the Mahila Police Station. She didn’t complete the formalities of FIR and
refused to take the copy. After all this she filed writ petition under 226 of Constitution.

Remedies when police refuse to file “FIR”

As we know nowadays refusal to file FIR by police officers are increasing rapidly in the case
of cognizable offence, police officer can only refuse to file FIR when he thinks that it is a
petty case or when he thinks it is a non-cognizable offence, but he can not do so in case of
cognizable offence, here are some of the remedies which one can use in case when police
refuses to file “FIR”.

ISSUE 2:

Whether, CBI can probe at this stage into the investigation?

In this case CBI cannot probe into the investigation at this early stage without exhausting all
the remedies. As before the CBI enters here such cases are to be investigate first at the intial
stage and taken in cognizance by the magistrate of first or second class and such allegations
already proven to be framed and girl has no proper medical reports are their and such framed
an falsehood stories of her own.

In the present case, the girl Ms. Dhanu has filed the case directly to the high court and has
asked the court to instruct CBI to enter into the investigation but as above mentioned clause
and case the CBI cannot enter without the permission or prior order by the central
government under section 6A and under section 6 by the state government. And also in the
current case there is no as such enough evidence is there, also the stage for the CBI to enter
is clearly not right as it very early stage and no such investigation is done and merely for the
sake that the officer is being involved in the case doesn’t mean CBI can probe at this stage.
Therefore it is not the right stage for CBI to enter into the investigation.

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ARGUMENTS ADVANCED

Issue 1:

Whether, the case is maintainable for issuing the directions by the high court for filing
the FIR against the police inspector and persons involved?

In the present case, the Mr. Dhruv with his 3 friends was jointly carry the business and
purchased the land. When Dhruv came back he sold the one land and deposited money in the
joint account with his daughter. After that all the partners filed the complaint against them
and police arrested his daughter Dhanu at 11pm. And around 4 am 3 of them along with
inspector raped her and the next day 4 pm they all threatened her on the way to not to inform
anyone otherwise she’ll killed were stated by her. And then they arrested her next day took
her to the magistrate also asked for 5 days remand as it was necessary to find out his father
and other investigation and also did her medical examination. The SP directed to lodged the
complaint in the Mahila Police Station. She didn’t complete the formalities of FIR and
refused to take the copy. After all this she filed writ petition under 226 of Constitution.

Remedies when police refuse to file “FIR”

As we know nowadays refusal to file FIR by police officers are increasing rapidly in the case
of cognizable offence, police officer can only refuse to file FIR when he thinks that it is a
petty case or when he thinks it is a non-cognizable offence, but he can not do so in case of
cognizable offence, here are some of the remedies which one can use in case when police
refuses to file “FIR”-

 By complaining to the superintendent of police.

 By complaining to a judicial magistrate.

 By filing the writ petition.

 By complaining about state and national human right commission.

In our case all the previous remedies were not exhausted and case was presented in front the
high court by filing writ petition already at the initial stage.

 As per section 154 (3) Superintendent of police has the power to look into the matter:

Any person aggrieved by a refusal on the part of an officer in charge of a police station to
record the information referred to in subsection (1) may send the substance of such
information, in writing and by post, to the Superintendent of Police concerned who, if
satisfied that such information discloses the commission of a cognizable offence, shall either
investigate the case himself or direct an investigation to be made by any police officer

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subordinate to him, in the manner provided by this Code, and such officer shall have all the
powers of an officer in charge of the police station in relation to that offence.-

Also as per section 156(3) the next remedy after exhausting the previous one the person
aggrieved can go to the magistrate.

(3) Any Magistrate empowered under section 1902 may order such an investigation as above-
mentioned.

In the case of Sakiri Vasu vs State Of U.P. And Others3 if a person has a grievance that the
police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the
Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if
that does not yield any satisfactory result in the sense that either the FIR is still not registered,
or that even after registering it no proper investigation is held, it is open to the aggrieved
person to file an application under Section 156 (3) Cr.P.C. before the learned Magistrate
concerned. If such an application under Section 156 (3) is filed before the Magistrate, the
Magistrate can direct the FIR to be registered and also can direct a proper investigation to be
made, in a case where, according to the aggrieved person, no proper investigation was made.
The Magistrate can also under the same provision monitor the investigation to ensure a
proper investigation.

In the present case also if Ms Dhanu had serious issue with non- filing of FIR then she must
visit the higher authority and even when the higher authority directed her to go to the Mahila
police station she there also refused to take the copy and not completed the formalities of
FIR. And in such a case even if she did so it’s her fault. And after that she had the another
remedy under section 156(3) to go to the magistrate having the jurisdiction but she has
exhausted that remedy and case is maintainable under the 156(3) and not under Article 226 of
the Constitution.

Also in the case of Dilawar Singh vs. State of Delhi JT 4 (vide para 17). We would further
clarify that even if an FIR has been registered and even if the police has made the
investigation, or is actually making the investigation, which the aggrieved person feels is not
proper, such a person can approach the Magistrate under Section 156(3) Cr.P.C., and if the
Magistrate is satisfied he can order a proper investigation and take other suitable steps and
pass such order orders as he thinks necessary for ensuring a proper investigation. All these
powers a Magistrate enjoys under Section 156(3) Cr.P.C.

2
190. Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second
class specially empowered in this behalf under sub- section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such
offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under
sub- section (1) of such offences as are within his competence to inquire into or try.
3
Sakiri Vasu vs State Of U.P. And Others Appeal (crl.) 1685 of 2007
4
Dilawar Singh vs. State of Delhi JT 2007 (10) SC 585

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In the present case she didn’t approach the magistrate and not exhausted all the remedies
provided her by the CrPc. And the Mahila police station was also not allowed to investigate
properly and before they can investigate in the matter Ms. Dhanu filed the criminal writ
petition under article 226 of the constitution. And the case is not maintainable under the high
court as before exhausting all the remedies previously provided you cannot approach the last
left over remedies.

In the case of Punjab National Bank v. O.C. Krishnan and Ors.5, and Shivgonda Anna
Patil and Ors. v. State of Maharashtra and Ors 6,this Court held that where hierarchy of
appeals is provided by the statute, party must exhaust the statutory remedies before resorting
to writ jurisdiction.

In the present case also the girl has not exhausted all the remedies given to her by the
statutory provisions and she has directly approach the high court for resorting the remedy to
writ jurisdiction which not maintainable.

In the case of  L. Hirday Narain v. Income Tax Officer, Bareilly 7 that if the High Court
had entertained a petition despite availability of alternative remedy and heard the parties on
merits it would be ordinarily unjustifiable for the High Court to dismiss the same on the
ground of non exhaustion of statutory remedies; unless the High Court finds that factual
disputes are involved and it would not be desirable to deal with them in a writ petition.

In the present case also the high court should not entrain the plea as Ms. Dhanu is available
with the other provisional remedies and in such the case the high court should dismiss the
petition and make Ms. Dhanu understand that every court has its jurisdiction and only after
clearly all the stages and remedies provided to a person can ensure the fair trial as well will
save the time and sequence of work divided among all the courts. Therefore the case is not
maintainable under Article 226 of the Constitution and court cannot entrain the case before
exhausting the already provided previous statutory remedies.

 Whether, Sukaru, Sanket and Sonu along with inspector to be convicted under
section 376 read with 120(b) of Indian Penal Code, 1960?

In the present case the allegations imposed on all the four people are wrong including the
inspector were completely one sided and the facts were clearly stated by girl to protect herself
from the case of wrongful gain. And also in the whole case his father is missing who
deposited the money in the joint account and make her enter into the share of gain. And also
as said by her that she was arrested by night 11 pm then why her mother didn’t reach the
police station or did take any actions. And also the girl was enough educated to ask for
medical examination at the same instance and when the later the examination was done no as
such reports were received.

5
Punjab National Bank v. O.C. Krishnan and Ors., [2001] 6 SCC 569 
6
Shivgonda Anna Patil and Ors. v. State of Maharashtra and Ors AIR (1999) SC 2281
7
 L. Hirday Narain v. Income Tax Officer, BareillyAIR (1971) SC 33

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In the case of Satbir Alias Satta vs State Of Haryana 8 It is true that in a rape case the
accused could be convicted on the sole testimony of the prosecutrix, if it is capable of
inspiring confidence in the mind of the Court. If the version given by the prosecutrix is
unsupported by any medical evidence or the whole surround circumstances are highly
improbable and believe the case set up by the proseuctrix, the court shall not act on the
solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the
sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen. "

In view of facts, mentioned above, we allow these appeals, set aside impugned judgment and
order and acquit both the appellants of the charges framed against them

In the present case, the medical examination report is not there nor does the girl have enough
evidence to prove her part. And the unsupported evidence and the whole surround
circumstances stated by the petitioner are highly improbable and also self made case set up is
done. So in such cases the court shall not act on such solitary evidence and extremely careful
in giving the judgment and look at the entire case is improbable and unlikely to happen.

In the case of Jagmalsingh v. State of Rajasthan9 The statement of the witness was
insufficient even to prove that the appellant assaulted or used criminal force against her with
an intention to outrage her modesty.

So in the present case also there was no enough evidence to prove the charge as in such the
medical report is something which the key important evidence about which the facts are silent
and no such medical report is there in existence.

In the case of Tuka Ram And Anr vs State Of Maharashtra 10,the result was that the
appeal succeeds and is accepted. The judgment of the High Court is reversed and the
conviction recorded against as well as the sentences imposed upon the appellants by it are set
aside. And it was held that she was "a shocking liar" whose testimony "is riddled with
falsehood and improbabilities".

In the present case also Ms. Dhanu has filed the case in front of the high court stating that all
the men has sexual assaulted her and she has being raped but all the allegations she has
imposed has no valid proof. Also when she was raped in the custody , the next day she was
produced in front of the magistrate there also she told nothing to the magistrate and also she
was so much educated that she know that she was safe in front of the court and also she could
get the security as well as further allegations made by her on the sexual harassment with her
would not be there. And it clearly indicates that she has told the court all the false statements
and along with that she had no sufficient means to prove her part. Therefore no one should be
convicted and allegations to be set aside by the court.

8
Satbir Alias Satta vs State Of Haryana CRIMINAL APPEAL NO. 923-DB OF 2004
9
Jagmalsingh v. State of Rajasthan 1980 Cr.L.R. 446 at P. 448(Raj)
10
Tuka Ram And Anr vs State Of Maharashtra ,1979 SCR (1) 810

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ISSUE 2:

Whether, CBI can probe at this stage into the investigation?

In this case CBI cannot probe into the investigation at this early stage without exhausting all
the remedies. As before the CBI enters here such cases are to be investigate first at the intial
stage and taken in cognizance by the magistrate of first or second class and such allegations
already proven to be framed and girl has no proper medical reports are their and such framed
an falsehood stories of her own.

In the case of State of West Bengal and others Vs. Committee for the Protection of
Democratic Rights, West Bengal and others, 11, wherein it was laid down that CBI should
not be directed to investigate in a matter merely because a party has levelled allegations
against an officer. It has further been held in the said judgment that until and unless, there is,
prima facie, sufficient material available, it will not be appropriate to issue directions to the
CBI to investigate a particular case.

In the present case also, the CBI should not be probed to investigate as merely the allegations
imposed on the police officer and also the petitioner has no enough source to prove and as
mentoned in the above case until and unless sufficient material is there the CBI cannot be
issued appropriate directions to enter into the matter.

Section 6. Consent of State Government to exercise of powers and jurisdiction. _ Noting

contained in section 5 shall be deemed to enable any member of the Delhi Special Police
Establishment to exercise powers and jurisdiction in any area in 5[a State not being a Union
Territory or railways area], Without the consent of the Government of that State.

Section 6A. Approval of Central Government to conduct inquiry or investigation.-(1) The

Delhi Special Police Establishment shall not conduct any enquiry or investigation into any
offence alleged to have been committed under the Prevention of Corruption Act,1988 (49 of
1988)  except with the previous approval of the Central Government 

As per the above sections stated it is clear that until and unless under section 6 and 6A the
cenertal or the state government doesn’t order the CBI cannot enter into the matter and in the
present case matter must such that it diesnt pile the case up for the CBI and overload the case
for the CBI and so therefore CBI cannot probe at such a stage in the case.

In the case of Sakiri Vasu .Vs. State of U.P12. as follows....this Court or the High Court has
power under Article 136 or Article 226 to order investigation by CBI. That, however, should
be done only in some rare and exceptional case, otherwise, CBI would be flooded with a
large number of cases and would find it impossible to properly investigate all of them.
(emphasis supplied) The Court further went on to conclude as follows :

11
State of West Bengal and others Vs. Committee for the Protection of Democratic Rights, West Bengal and
others 2010 (3) SCC 571
12
Sakiri Vasu .Vs. State of U.P Appeal (crl.) 1685 of 2007

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In view of the above, the law can be summarised to the effect that the Court exercise its
constitutional powers for transferring an investigation from the State investigating agency to
any other independent investigating agency like CBI only in rare and exceptional cases. Such
as where high officials of State authorities are involved, or the accusation itself is against the
top officials of the investigating agency thereby allowing them to influence the investigation,
and further that it is so necessary to do justice and to instil confidence in the investigation or
where the investigation is prima facie found to be tainted/biased.

Admittedly, the investigation in the case on hand is at very preliminary stage. The same is
being carried out by the CBCID. Therefore, we see no reason to transfer the investigation to
the Central Bureau of Investigation. The writ petition fails and it is dismissed. According to
the section 6 and 6A of The Delhi Special Police Establishment (DSPE) Act, 1946 The
Central Bureau of Investigation traces its origin to the Special Police Establishment (SPE)
which was set up in 1941 by the Government of India. The CBI's power to investigate cases
is derived from this Act.

In the present case, the girl Ms. Dhanu has filed the case directly to the high court and has
asked the court to instruct CBI to enter into the investigation but as above mentioned clause
and case the CBI cannot enter without the permission or prior order by the central
government under section 6A and under section 6 by the state government. And also in the
current case there is no as such enough evidence is there, also the stage for the CBI to enter
is clearly not right as it very early stage and no such investigation is done and merely for the
sake that the officer is being involved in the case doesn’t mean CBI can probe at this stage.
Therefore it is not the right stage for CBI to enter into the investigation.

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PRAYER

Wherefore in the lights of the facts and circumstances of the case issues raised, arguments
advanced and authority cited counsel for the respondent humbly prays to the Hon’ble Court
to grant the following relief:

 To dismiss the appeal as the case is not maintainable.

 To issue no such directions for CBI to probe at this stage in the investigation.

Or pass any other order it deems fit in the interest of justice, equity and good conscience

For the above act of kindness counsel for the respondent shall forever be obliged and
grateful.

(Counsel for the Respondent)

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