SYNOPSIS

Warm greeting to the bench

My lordships
May It please the hon’ble court, This is counsel no 2 on behalf of the petitioner for issues no
3 and 4.
<much obliged >
Issue3. Whether registering a case of theft on account of possession and transportation
of Arayanna is maintainable or not?

The counsel would be dealing with this issue in a threefold manner

It is the contention of the counsel that registering a case of theft on account of possession and
transportation of Arayanna is not maintainable. Hence the counsel seeks answer to the above
issue in negative.

According to section 378 of the penal code, theft is defined as follows,

“Whoever, intending to take dishonestly any moveable property out of the possession of any
person without that person`s consent, moves that property in order to such taking, is said to
commit theft.”

The essentials of theft have been highlighted in the judgement given by Supreme Court of India
in the case of K N Mehra V. State of Rajasthan.
“Commission of theft, therefore, consists in (1) moving a movable property of a person out of
his possession without his consent, (2) the moving being in order to the taking of the property
with a dishonest intention.”

The first sub issue raised

(1) Is the property in possession of a person?

Counsel of petitioner humbly submits that, the three accused persons were merely
transporting the Arayannas. The said birds come under no individual’s possession. Birds are
considered as ferae naturae.80 In a similar case to the matter before the Supreme Court of
Vengadam, the Orissa High Court in the case of Govindha Majhi V. Arobinda Kar, held
that fish does not come under anybody’s possession if they are in their natural habitat because
they were free to go anywhere they liked. Now the question arises before the Hon’ble court
when does an animal come under the possession of an individual? The counsel of petitioner
would like to state another similar case which gives the answer to the question before us. The
Supreme Court of India in the case of Chandi Kumar Das Karmakar V. Abanidhar Roy
held that fish kept in the fish tank of a person is said to be in possession of that person. From
this case it is implied that the animals living in an artificial habitat created by an individual is
said to be in that person’s possession. The habitat where they live but from where they cannot
escape.
In the instant case the Arayannas were not taken from a habitat which is created by any
individual, they were not restricted from any movement.

The counsel would like to draw the attention of the bench to para 3 of the moot court
proposition

Wherein It is categorically clear from the facts that Arayannas had a peculiar character and an
unusual habitat, and they cannot be domesticated and are not being considered as a pet bird.
This is sufficient enough to prove that Arayannas were freely living in their natural habitat
and do not come under anybody’s possession. By this the first essential element of, “moving
a movable property of a person out of his possession without his consent” cannot be proved
and cannot be charged for theft under section 378 of the penal code.

(2) Act should be done without the consent.

The counsel would like to submit before the Hon’ble court that the act of the accused nowhere
makes them dispossessing the birds from the owner. Paragraph 9 of the proposition mentions that
three persons were merely transporting bird, but nowhere mentions that it is an theft as there is no
relevant law for the same.

I would like to bring to the Hon’ble Court’s kind notice that, when it comes to possession of the
wild animals there are of two types i) Gaining title, ii) Constructive possession.

(i) Gaining Title

(ii) Constructive Possession

It is humbly submitted that the said birds were neither in title of someone nor in constructive
possession of someone. Since the birds were not under anybody’s possession there is no room
for consent. No question of consent arises in the instant case. Therefore the essential element
of moving a property out of a person’s possession without his/her consent is not fulfilled and
theft will not be proved.
As there was a dearth of specific law regulating the possession and transportation of aryannas
the accused have exercised constructive possession over the 51 Arayannas and hence are the
rightful owners of these birds.

(3) Is the element of dishonest intention present at the time of moving the property?

The counsel for the petitioner likes to submit before the Hon’ble court that the offence of theft is
incomplete without dishonest intention on the part of the accused. The counsel would like to draw
the attention of the bench to the opening phrase of section 378 of the Penal Code reads,
“Whoever dishonestly….” This signifies the importance of the dishonest intention in the crime of
theft under the penal code.
In K N Mehra v. State of Rajasthan the importance of dishonest intention was discussed "It is
rightly pointed out that since the definition of theft requires that the moving of the property is to
be in order to such taking, 'such' meaning 'intending to take dishonestly' the very moving out must
be with the dishonest intention."

In the instant case, the action of the accused, i.e. transporting of the 51 live Arayannas must cause
a wrongful gain to the accused or wrongful loss to another person. Only when this is proved, the
presence of dishonest intention can be highlighted.
Firstly, the transportation of these birds is not resulting in any wrongful gain to the accused.
Secondly, there is no other person involved. As proved earlier, the birds were not in anybody’s
possession; hence it is not causing any wrongful loss to anybody.
It is evident from the facts that the accused has not wrongfully gained from the act or wrongfully
caused loss to someone. Hence the element of dishonest intention cannot be proved.
To conclude, the essentials of theft highlighted in K.N Mehra v. State of Rajasthan. Hence it is
the humble submission of the counsel that the accused cannot be charged under the offence of
theft as the essentials of theft are absent.

4.WHETHER REGISTERING A CASE UNDER SECTION 124A OF THE PENAL CODE OF VENGADAM
ON ACCOUNT OF A STATEMENTS MADE IN NEWS DISCUSSUION WOULD VIOLATE THE
FUNDAMENTAL FREEDOM OF SPEECH GAURENTEED IN THE CONSTITUITION OF VENGADAM
OR NOT?

The counsel will be addressing this issue in a four fold manner

Lorships before I begin with my submission I would like to quote the words of Father of our
nation
Section 124A under which I am happily charged is perhaps the prince among the political
sections of the Indian Penal Code designed to suppress the liberty of the citizen. Affection
cannot be manufactured or regulated by the law. If one has no affection for a person, one
should be free to give the fullest expression to his disaffection, so long as he does not
contemplate, promote or incite to violence.” – Mahatma Gandhi

The counsel seeks answer to the above issue in affirmative. Section 124A of the penal code of
Vengadam violates the freedom of speech and expression recognised under Art.19 of Vengadam
constitution. Such freedom is considered as the foundation stone for every free and democratic
society.This freedom is also enshrined under Art.19 of ICCPR.

1st sub issue

4.1 Section 124A Vengadam penal code (VPC) violates the intrinsic right to free speech and
expression.
It is most humbly contended before the honourable court that Section 124A of the VPC violates
freedom of speech and expression and is void since the Section is imprecise and vague.

It is most humbly contended that Right to freedom and expression is a most cherished value
forming the basis of a democratic society. The words “freedom of speech and expression”
finds place in the association of words “Liberty of thought, expression, belief, faith and
worship” which form a part of preamble of our Constitution.

4.1.1 section 124A is vague

Section 124A of VPC states “Whoever, by words, either spoken or written, or by signs, or by
visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites
or attempts to excite disaffection towards the government established by law in India shall be
punished with imprisonment for life.”

The term like disaffection is vague and subject to various interpretation the word disaffection
includes “disloyalty and all feelings of enmity” are ambiguous and can be interpreted
differently depending on the set agenda. In Shreya Singal V. Union of India the Supreme
Court held the vagueness of law can be sufficient ground for its invalidation.

4.1.2 Does not pass the test of causation and proximity

In the case of The Superintendent, Central Prison, Fatehgarh V. Dr Ram Manohar Lohia it
was held by the apex court that in order to prevent complete arbitrariness and to give effect to
requirements of reasonableness there needs to be test of causation and proximity.
In the case of Balwant Singh V. State of Punjab98 the Supreme Court proposed a test of
proximity. It is clear from the Indian jurisprudence that any arbitrary law is unconstitutional
beyond any reasonable doubt. American Supreme Court has held that there must be a “clear and
imminent danger” for restriction of free speech.
In the instant case Adv. Mathur Nath opinion clearly did not cause any danger, and the F.I.R filed
against him is unreasonable and does not fall within the ambit of Art.19(2) of Vengadam
constitution.

4.1.3 Does not pass the test of national security

In Romesh Thapar V. the State of Madras It was held that “nothing less than endangering the
foundations of the state or threatening its overthrow could justify curtailment of the rights to
freedom of speech and expression.” Thus, if the right to free speech invokes a tendency to
violently overthrow a government established by law an action under section124A of VPC can be
initiated.
When such necessity is absent then the law is prone to unconstitutional use, in the instant case the
law has been prone to unconstitutional use by the state as Adv. Mathur Nath’s opinion did not
tend to violently overthrow the government.

4.1.4 Right to disagree with the Governments Policy is a part of the Basic Right
enshrined under Part 3 of Constitution of Indus.
Freedom of speech not only recognizes Right to speech but also recognizes right to hear. The
State cannot prevent open discussion and open expression, however hateful to its policies. It is
pertinent to refer to the Supreme Court of India’s Judgement in the case of LIC V. Manubhai D.
Shah (Prof.) wherein it was held that Freedom to air one’s view is the lifeline of any democratic
institution and any attempt to stifle or gag this right would send a death-knell to democracy. In
the instant case Adv. Mathur Nath’s statement on a live news discussion was to express his
dissatisfaction with the ruling dispensation, legislature has taken away the fundamental right to
dissent which is sacrosanct to a democracy.

4.2 Section 124A is an unreasonable restriction

Freedom of speech guaranteed under Art.19 is essential in functioning of a democratic polity
further the restrictions must pass the test of reasonableness, therefore it cannot be curtailed
ordinarily.
It is most humbly contended that section 124A of VPC is an unreasonable restriction to freedom
of speech and expression enshrined under Art.19(1)(a). The freedom of speech and expression
also has the right to express one’s views and opinions on any issue through any media. In the case
of Maneka Gandhi V. Union of India Bhagwati J. has emphasized on the significance of the
freedom of speech & expression in these words: “Democracy is based essentially on free debate
and open discussion, for that is the only corrective of government action in a democratic set up. If
democracy means government of the people by the people, it is obvious that every citizen must be
entitled to participate in the democratic process and in order to enable him to intelligently
exercise his rights of making a choice, free & general discussion of public matters is absolutely
essential.”

4.2.1 This section is outside the scope of restrictions under Art.19(2).

As per Art.19 (2) the five restrictions which can be imposed on free speech are:
(i)Public order (ii) Morality (iii) National security (iv) Defamation (v) Incitement to an offence
None of these cover hatred, contempt or disaffection towards the Govt. Further, public order has
been held not to be synonymous with law and order but something which affects the public at
large. Similarly, incitement to an offence is not merely that the audience may have a feeling of
hatred, contempt or disaffection but should have been by abetment to commit an offence. Thus,
unless the presence of incitement to commit an offence is read into the section, it would be
rendered unconstitutional.
It is most humbly contended that in the instant case Adv. Mathur Nath’s opinion did not result in
incitement of an offence hence the section is read without the presence of incitement to commit
an offence and can be rendered as unconstitutional.

4.2.3 Mere criticism cannot be considered sedition

Section 124A defines the limits of sedition as follows “Comments expressing disapprobation of
the measures of the government to obtain their alteration by lawful means, without exciting or
attempting to excite hatred, contempt or disaffection, do not constitute an offense under this
section. Comments expressing disapprobation of the administrative or other actions of the
government without exciting or attempting to excite hatred, contempt or disaffection, do not
constitute an offense under this section.”
In Kedar Nath Singh V. State of Bihar the Supreme Court restricted the scope of sedition law
enshrined under section 124A of VPC. It was held that the application of this section must be
limited to “acts involving intention or tendency to create disorder or disturbance of law and order;
or incitement to violence". Supreme Court held that a citizen has a right to say or write whatever
he likes about the Government, or its measures, by way of criticism or comment, so long as he
does not incite people to violence against the Government established by law or with the intention
of creating public disorder.
In Vinod Dua V. Union of India the Supreme Court held that merely criticising the government
does not amount to sedition. It said, “The time is long past when the mere criticism of
governments was sufficient to constitute sedition, for it is recognised that the right to utter honest
and reasonable criticism is a source of strength to a community rather than a weakness”. It is
confirmed and held that Right to Criticize Government falls within the framework off Art.19(1)
(a) of Constitution of Vengadam.

The counsel would like to draw the attention of the bench to paragraph 13 of the moot
proposition

Where in Adv. Mathur Nath’s opinion “………The people who enact the laws should have some
sense….it is high time people should react against such governments…...” 114 these statements
were mere criticism which cannot be considered as sedition.

4.3 Union of Vengadam’s obligation under International Law

The country is bound by the ICCPR (international covenant on civil and political rights). The
ICCPR recognises the dignity and promotes conditions within states to allow enjoyment of civil
and political rights. Right to freedom of speech and expression is protected under Art.19 of
ICCPR this right is not absolute and international law sets out stringent standards which need to
be met by states to restrict this right.

ICCPR provides for the standards to restrict freedom of speech and expression by the state:
(a) Provided for by law (b) Necessary (c) In pursuit of one of the legitimate aims set forth in the
Art. (is for the respect of the rights or reputations of others, for the protection of national security
or of public order, or of public health or morals) 115
It is most humbly contended that section 124A as a restriction of freedom of expression falls
short of these requirements in that it is neither 'necessary' nor sufficiently 'provided by law'.

4.4 The FIR Lodged against Adv. Mathur Nath is illegal

It is most humbly contended that FIR against Adv. Mathur Nath for his statement during a live
news night discussion where he had stated, “the people who enact the laws should have some
sense …it is high time people should react against such senseless governments……”. does not
fall within the ambit of section 124A.
In Gurjatinder Pal Singh V. State of Punjab, Punjab & Haryana HC quashed the FIR filed
under Section 124A of the IPC and cited the decision of the Supreme Court in Balwant Singh V.
State of Punjab where it was held that the mere casual raising of slogans a couple of times
without the intention to incite people to create disorder would not constitute a threat to the
Government of India. In the instant case Adv. Mathur Nath did not have any intention to incite
people to create disorder and the FIR filed against him is illegal.

4.4.1 Quashing of FIR through writ jurisdiction of Supreme Court

The Constitution of Vengadam guarantees direct access to its Supreme Court for its fundamental
rights through Art.32 of the Constitution of Vengadam. It is pertinent to refer to the Judgement
given by this court in the case of Vinod Dua V. Union of India, wherein this honourable court
by exercising its power under Art.32 had quashed the FIR lodged against a journalist on the
ground that FIR violates his Fundamental Right of Freedom of Speech as conferred to him under
Art. 19(1)(a) of Constitution of Vengadam. So therefore, it cannot be said that FIR cannot be
quashed by the Supreme Court through invoking its Writ Jurisdiction under Art.32 of
Constitution of Vengadam.

The Supreme Court in Plethora of cases has held that FIR can be quashed on the ground inter alia
to:
(1) Prevent abuse of Process of Law (2) Otherwise, to secure the ends of Justice.

It is also to be noted that the proposition of law laid down by the Supreme Court in the case
of State of Haryana V. Bhajanlal for quashing the criminal proceeding is Where the
allegations made in the first information report or the complaint, even if they are taken at
their face value and accepted in their entirety do not prima facie constitute any offence or
make out a case against the accused the FIR can be quashed.

In the instant case allegations made in the First Information Report even if they are taken at
their face value and accepted in their entirety do not prima facie constitute any offence or make
out a case against the Accused. Therefore, it is respectfully contended that First Information
Report registered against Adv. Mathur Nath should be quashed.

if your lordships do not have any further queries the counsel would now like to move to the
prayer

in light of the facts stated, issues raised, arguments advance, and authorities cited, the Petitioner
most humbly and respectfully request the Hon’ble Supreme court to adjudge and declare that:
A. The amendments made in Section 43(3)(a) and 44 of the Wildlife (Protection) Act, 1972
thereby extending the operation of the Act of Arayanna is violative of freedom of religion.

B. The amendments made in Section 43(3)(a) and 44 of the Wildlife (Protection) Act,1972
amount to violation of right to livelihood of Vallum Craft makers.
C. Registering a case of theft on account possession and transportation of Aryanna is not
maintainable.

D. Registering a case under Section 124A of the Penal Code of Vengadam on account of a
statements made in news discussion violate the fundamental freedom of speech guaranteed in the
Constitution of Vengadam.

AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience. And
for this, the Petitioner as in duty bound, shall humbly pray.

It was a pleasure pleading before your lordships.