Memorial written by Avinash

Kumar

For accused -Divya

Jurisdiction
The complainant has approached the Juvenile Justice Board under section 27 of The
Code of Criminal Procedure, 1973 read with section14(5)(d) and 14(5)(e) of the
Juvenile Justice Act, 2015. The defendant humbly submits to the jurisdiction of this
court.

Section 27 of the CrPC states that, Any offence not punishable with death or
imprisonment for life, committed by any person who at the date when he appears or
is brought before the Court is under the age of sixteen years, may be tried by the
Court of a Chief Judicial Magistrate, or by any Court specially empowered under the
Children Act, 1960 (60 of 1960), or any other law for the time being in force providing
for the treatment, training and rehabilitation of youthful offenders.

Section 14(5)(d) of the JJ Act, 2015 states that cases of petty offences, shall be
disposed of by the Board through summary proceedings, as per the procedure
prescribed under the Code of Criminal Procedure, 1973.

Section 14(5)(e) of the JJ Act, 2015 states that inquiry of serious offences shall be
disposed of by the Board, by following the procedure, for trial in summons cases
under the Code of Criminal Procedure, 1973.

Issues
1. Is the accused guilty of abetment of suicide under section 306 of the Indian Penal
Code, 1860?

2. Is the accused guilty of charges framed under section 294 and 354C of the Indian
Penal Code, 1860?
2.1. Whether transmitting obscene images is an offence under the section 294 of the
Indian Penal Code, 1860?
 2.2. Whether the Pixtagram group, “The Raging Boys” comes under the ambit of
public place?
2.3. Is the accused guilty of committing the offence of voyeurism as per section 354C
of the Indian Penal Code, 1860?

3. Is the accused guilty of identity theft under section 66C of the IT Act, 2000?

4. Is the accused guilty of offences charged under section 67, 67A and 67B of the
Information Technology Act, 2000?
4.1. Whether actions of the accused come under the exceptions of the
aforementioned sections?
4.2. Whether the images transmitted by the accused were sexually explicit and were
those images obscene through the lens of constitutional morality?

Provision of Law
1. The Indian Penal Code, 1860
 Section 34 (Acts done by several persons in furtherance of common intention)
 Section 294 (Obscene acts in public places)
 Section 306 (Abetment of suicide)
 Section 354C (Voyeurism)

2. The Code of Criminal Procedure, 1973

 Section 27 (Jurisdiction in the case of juveniles)

3. The Information Technology Act, 2000

 Section 66C (Punishment for identity theft)
 Section 67 (Punishment for publishing or transmitting obscene material in
electronic form)
 Section 67A (Punishment for publishing or transmitting of material containing
sexually explicit act,etc. in electronic form)
 Section 67B (Punishment for publishing or transmitting of material depicting
children in sexually explicit act, etc. in electronic form)

4. The Juvenile Justice(Care And Protection Of Children) Act, 2015

 Section 2(45) ("petty offences")
 Section 2(54) ("serious offences")
 Section 14(5)(d) (Procedure for "petty offences")
 Section 14(5)(e) (Procedure for "serious offences")
 Section 18(1) and 18(2) ( Punishment for "petty" and "serious" offences)

5. Lex specialis derogat legi generali (special law repeals general law)

Case Laws

1. S.S. Chheena v. Vijay Kumar Mahajan & Anr., MANU/SC/0585/2010 - Para 28

https://drive.google.com/file/d/1NzO8cMMzlw5RDeDjMfnHO6CKMzHRZbAd/view?
usp=sharing

2. Amalendu Pal v. State of West Bengal, MANU/SC/1808/2009 - Para 13

https://drive.google.com/file/d/1rYPw7ZpDpsOxKzpfvN_l3oqjUxoQSulE/view?
usp=sharing

3. Gagan Harsh Sharma & Anr v State of Maharashtra & Anr, MANU/MH/3012/2018
- Para 16

https://drive.google.com/file/d/1FPrYTjWSWMiDkvx6_nn3rXC8ccKIhGJo/view?
usp=sharing

4. Navtej Singh Johar v. Union of India, MANU/SC/0947/2018 - Para 23

https://drive.google.com/file/d/1fAnHMDFLkbjSedLJ6nYqhKk5vJ0KWYzR/view?
usp=sharing

5. Ashcroft v. Free Speech Coalition, MANU/USSC/0029/2002 - Page 13, para 1

https://drive.google.com/file/d/1ARR5ZtOIQ1q9VaPBFp1e3Xs13_t0UPnP/view?
usp=sharing

Summary of Arguments
1. Is the accused guilty of abetment of suicide under section 306 of the Indian
Penal Code, 1860?

The offence of abetment under Section 306 of IPC shall conform to the definition of
‘abetment’ under Section 107 of IPC i.e. there must be instigation, or engaging in
conspiracy or assistance in the commission of offence. The Hon’ble Supreme Court
in S.S. Chheena v. Vijay Kumar Mahajan & Anr. ruled that abetment involves a
mental process of instigating a person or intentionally aiding a person in doing of a
thing. Without a positive act on the part of the accused to instigate or aid in
committing suicide, conviction cannot be sustained. The Hon’ble Court also
observed that there has to be a clear mens rea to commit the offence. The High
Court of Madras in Manikandan v. State, observed that it is not the wish and
willingness nor the desire of the victim to die, it must be the wish of the accused, it is
the intention on the part of the accused that the victim should die that matters much.
There must be a positive act on the part of the accused.

It is most humbly submitted before the court that all the aforementioned criterions
were absent and that the accused neither instigated nor in any manner assisted the
deceased in committing suicide. The charge sheet fails to mention any criminal intent
of the accused behind the alleged offence. Furthermore, the last conversation
between the accused and the deceased took place on 25th May, 2020 whereas the
deceased committed suicide on 4th June, 2020. It is further submitted that the
events which transpired after 25th May, 2020 were what led the deceased to commit
suicide. Das’s inability to handle the constant public criticism, scrutiny and media
trials which irresponsibly portrayed him in a very bad light was responsible for his
action.

In Amalendu Pal v. State of West Bengal, the Hon’ble Supreme Court observed that
if it transpires to the court that a victim committing suicide was hypersensitive to
ordinary petulance, discord and differences in domestic life quite common to the
society to which the victim belonged and such petulance, discord and differences
were not expected to induce a similarly circumstanced individual in a given society to
commit suicide, the conscience of the court should not be satisfied for basing a
finding that the accused charged of abetting the offence of suicide should be found
guilty.

2. Is the accused guilty of charges framed under section 294 and 354C of the
Indian Penal Code, 1860?

2.1. Whether transmitting obscene images is an offence under the section 294
of the Indian Penal Code, 1860?

Section 294 of the Indian Penal Code, 1860 states that - Whoever, to the annoyance
of others,
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene song, ballad or words, in or near any public
place,
shall be punished with imprisonment of either description for a term which may
extend to three months, or with fine, or with both.

It is submitted that from the simple reading of the section it is abundantly evident that
the actions of the accused are not in concurrence with essential ingredients of the
aforesaid provision. The accused has neither done any obscene act nor uttered or
recited anything for which she is being charged.

The Bombay High Court in Gagan Harsh Sharma & Anr v State of Maharashtra &
Anr relied on the principle of lex specialis derogat legi generali (special law repeals
general law) and emphasized that the application of a special law will override the
application of a general law. Since the offence in question is sufficiently covered
under the provisions of the Information Technology Act, 2000 (IT Act), the IT Act will
apply as lex specialis to the exclusion of the Indian Penal Code, 1860 (IPC).

2.2. Whether the Pixtagram group, “The Raging Boys” comes under the ambit
of public place?

It is humbly submitted before the court that public place by its very definition is a
location to which all of the public has access and is not a place exclusively used for
private gathering or any other personal purpose. The Pixtagram group, “The Raging
Boys” cannot be termed as a public place as the general public at large did not have
the access to the group. Only the admin of the group can add members to the group
and the content transmitted in the group can only be accessible by the members of
the group. It is further submitted that another essential ingredient of section 294 is
annoyance and the phrase “to the annoyance of others” has to be interpreted
objectively with reference to general public. Since, general public did not have
access to the group, annoyance as to the materials transmitted in it cannot be
claimed.

2.3. Is the accused guilty of committing the offence of voyeurism as per

section 354C of the Indian Penal Code, 1860?

Section 354C of the Indian Penal Code, 1860 states that - Any man who watches, or
captures the image of a woman engaging in a private act in circumstances where
she would usually have the expectation of not being observed either by the
perpetrator or by any other person at the behest of the perpetrator or disseminates
such image shall be punished on first conviction with imprisonment of either
description for a term which shall not be less than one year, but which may extend to
three years, and shall also be liable to fine, and be punished on a second or
subsequent conviction, with imprisonment of either description for a term which shall
not be less than three years, but which may extend to seven years, and shall also be
liable to fine.

It is most humbly submitted that from the simple reading of the provision it is evident
that the aforesaid provision applies only to a male. The accused being a female is
immune to this section and therefore she cannot be charged for the offences
mentioned under it.

3. Is the accused guilty of identity theft under section 66C of the IT Act, 2000?

Section 66C of the IT Act, 2000 states that, “Whoever, fraudulently or dishonestly
make use of the electronic signature, password or any other unique identification
feature of any other person, shall be punished with imprisonment of either
description for a term which may extend to three years and shall also be liable to fine
which may extend to rupees one lakh.”
This section penalises identity theft. This section applies to cases where someone
who dishonestly or fraudulently does the following:
(1) makes use of the electronic signature of any other person, or
(2) makes use of the password of any other person, or
(3) makes use of any other unique identification feature of any other person.

It is humbly submitted before the court that the accused had merely created a fake id
on the Pixtagram app. A case of identity theft cannot be made as the identity under
which the accused operated was entirely fictional. It is further submitted that the
neither did the accused make use of any electronic signature, password or any other
unique identification feature, nor any of these existed in the first place.

4. Is the accused guilty of offences charged under section 67, 67A and 67B of
the Information Technology Act, 2000?

4.1. Whether actions of the accused come under the exceptions of the
aforementioned sections?
It is humbly submitted before the court that the exceptions under section 67, 67A and
67B clearly state that the provisions of section 67, section 67A and section 67B do
not extend to any book, pamphlet, paper, writing, drawing, painting, representation or
figure in electronic form-
(i) The publication of which is proved to be justified as being for the public good on
the ground that such book, pamphlet, paper writing, drawing, painting, representation
or figure is in the interest of science, literature, art or learning or other objects of
general concern; or
(ii) which is kept or used for bonafide heritage or religious purposes.

It is humbly contended that the accused had no criminal intent behind her actions.
The accused joined the Pixtagram group, “The Raging Boys” under a fake ID to
expose the perpetrators and gather evidence to let the fullest consequences of law
visit upon them. The admin of the group, Navneet was very vigilant regarding the
members of the group as well as its secrecy. Therefore, the accused had to transmit
images of similar nature being shared in the group to portray herself as someone on
the same pedestal.

4.2. Whether the images transmitted by the accused were sexually explicit and
were those images obscene through the lens of constitutional morality?

It is submitted that sexually explicit by its very definition is pictorial depiction of actual
or simulated sexual acts. The images transmitted by the accused in the Pixtagram
group were of obscene nature through the eyes of societal morality and do not come
under the definition of sexually explicit per se. It is contended that since section 67A
of the IT Act, 2000 deals with publishing or transmitting sexually explicit material, the
charges framed against the accused under this section do not hold water.

It is further submitted that the images transmitted by the accused were obscene
through the lens of societal morality. In the case of Navtej Singh Johar v. Union of
India, the Hon’ble Supreme Court observed that it is expected from the courts as the
final arbiter of the Constitution to uphold the cherished principles of the Constitution
and not to be remotely guided by majoritarian view or popular perception. The Court
has to be guided by the conception of constitutional morality and not by societal
morality. This was elucidated further by D. Y. Chandrachud, J. in his concurring
opinion in Joseph Shine v. Union of India, laying down that law cannot be guided by
‘common morality’ of the state at any point in history, but rather by ‘constitutional
morality’.

It is also submitted that in Ashcroft v. Free Speech Coalition, the US Supreme Court
struck down provisions of Child Pornography Prevention Act, 1996 which specifically
proscribed computer-generated or altered depictions of minors engaging in explicit
sexual conduct. The Court ruled that the law’s expanded definition of child
pornography as including any image that “appears to be” of a minor engaging in
sexually explicit conduct or that is “presented in such a manner that conveys the
impression” that it is of a minor engaging in sexually explicit conduct would
criminalize images that are not obscene and images that were not produced with any
real children.
Prayer
Wherefore, in light of the issues raised, arguments advanced and authorities cited,
may this Hon’ble Court be pleased to:

I. Acquit Divya for offence of abetment of suicide under section 306 of the Indian
Penal Code, 1860.
II. Acquit Divya for offence of spreading obscenity on a public platform under section
294 of the Indian Penal Code, 1860.
III. Acquit Divya for offence of identity theft under section 66C of The Information
Technology Act, 2000.
IV. Acquit Divya for offences of transmitting obscene and sexually explicit images
and texts pertaining to underage girls under sections 67, 67A, 67B of The
Information Technology Act, 2000.
AND/OR

Pass any other order it may deem fit, in the interest of Justice, Equity and Good
Conscience. All of which is most humbly and respectfully submitted.

COUNSEL FOR THE DEFENCE