6th MANGILAL PAGARIYA NATIONAL MOOT COURT COMPETITION

Team Code: MATS11

6TH MANGILAL PAGARIYA NATIONAL MOOT COURT COMPETITION, 2019

BEFORE

THE HON’BLE HIGH COURT OF INDRAPRASTHA

UNDER SECTION 374(2) OF SHAURYAVARSHIAN CODE OF CRIMINAL PROCEDURE,

1973

Mr. KHURSHEED LONE PANDAT…………………………………….. Appellant

v.

STATE OF INDRAPRASTHA................................................…………. Respondent

MEMORIAL ON BEHALF OF APPELLANT

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ...................................................................................................... ii

INDEX OF AUTHORITIES ....................................................................................................... iii
STATEMENT OF JURISDICTION .......................................................................................... vi
STATEMENT OF FACTS ......................................................................................................... vii
SUMMARY OF ARGUMENTS ................................................................................................. ix
ARGUMENT ADVANCED ......................................................................................................... 1
1.THAT THE CONVICTION OF THE ACCUSED UNDER SECTION 124A OF SPC IS
VIOLATIVE OF ARTICLE 19(1) (a) OF SHAURYAVARSHIAN CONSTITUTION. ... 1
1.1 THAT THE CONVICTION OF ACCUSED IS VIOLATIVE OF ARTICLE 19(1) (a) OF
SHAURYAVARSHIAN CONSTITUTION. .......................................................................... 1
2.THAT CONVICTION OF APPELLANT UNDER SECTION 66A OF
uuSHAURYAVARSHIAN IT ACT IS NOT JUSTIFIABLE................................................... 5
2.1 THAT SECTION 66A OF SHAURYAVARSHIAN IT ACT IS VAGUE ...................... 6
2.2 THAT SECTION 66A OF SHAURYAVARSHIAN IT ACT IS IMPOSING
UNREASONABLE RESTRICTION ON THE FUNDAMENTAL RIGHTS. ....................... 7
3.THAT THE CONVICTION UNDER SECTION 117, 120B & 153A OF SPC IS
INVALID.................................................................................................................................... 8
3.1 THAT THE APPELLANT IS NOT LIABLE UNDER SECTION 117 OF SPC ............. 8
3.2 THAT THE APPELLANT IS NOT GUILTY UNDER SECTION 120B OF SPC ........ 10
3.3 THAT THE APPELLANT SHOULD NOT BE CONVICTED UNDER § 153A OF SPC
............................................................................................................................................... 12
PRAYER ........................................................................................................................................ x

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LIST OF ABBREVIATIONS
§ Section
¶ Paragraph
& And
AIR All India Reporter
Anr Another
BAS Business of Shauryavarsh
CBI Central bureau of Investigation
Cri. L.J Criminal Law Journal
DPP Director of Public Prosecutions
Ed. Edition
Id. Ibid
IPC Indian Penal Code
ITA Information Technology Act
NCT National Capital Territory
Ors Others
Pg. Page
RCR (Cri) Recent Criminal Reports
SCR Supreme Court Reports
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SPC Shauryavarshian Penal Code
Supra Above
UOI Union of India
US United States
v. Versus
WLR Weekly Law Reports

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INDEX OF AUTHORITIES

CASES
1. A.K Roy v. Union of India, (1982) 1 SCC 271…………………………………………...6
2. Alavi and Ors. v. State of Kerala, 1982 Cri. L.J 94…………………………………...…..4
3. American Communications Association v. Douds, 339 US 382 (1950)……………….....6
4. Anoop M.K. v. Union of India and Ors., (2003) 1 UPLBEC186…………….........……...7
5. B Ammu v. State of Tamilnadu, 2009 Cri. L.J 866 Mad……………………….…………9
6. Balwant Singh and Anr. v. State of Punjab, 1995 3 SCC 214………………...…….....4,13
7. Bennett Coleman and Company and Ors. v. Union of India and Ors., (1973) 2 SCR 757 at
829…………………………………………………………………………………………2
8. Bharath Kumar K. Palicha v. State of Kerala, AIR 1997 Ker 291………………………..2
9. Bilal Ahmed Kaloo v. State of A.P, (1997) 7 SCC 431………………………….………13
10. CBI, Hyderabad v. K.Narayana Rao, (2012) 9 SCC 512………………………………..11
11. Chambers v. DPP, (2013) I WLR 1833…………………………………………………...6
12. Chintaman Rao v. State of Madhya Pradesh, 1950 SCR 759…………………………......6
13. Chitresh Kumar Chopra v. State (Government of NCT of Delhi), 2009 16 SCC 605……8
14. Common Cause and Anr. v. Union of India, 2016 SCC 1087………………………..…...4
15. Common Cause v. Union of India, W.P (C) No. 21 of 2013…………………….………..7
16. Communist Party of India (M) v. Bharath Kumar, (1998) 1 SCC 201……………………2
17. DPP v. Collins, (2006) I WLR 2223………………………………………………….…...5
18. Gurjatinder Pal Singh v. State of Punjab, (2009) 3 RCR (Cri) 224…………………..…...3
19. Iswari Prasad Sharma v. Emperor, AIR 1927 Cal 747………………………………..…14
20. Joy Cherian v. Sub Inspector of Police, 2015 (2) KHC 570…………………….……….13
21. Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166…………………….…………..7
22. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955………………………….….......4,7
23. Kehar Singh v. State (Delhi Administration), (1988) 3 SCC 609……………………….11
24. Mahendra Singh v. State of Madhya Pradesh, 1995 Supp.(3) SCC 731…………………9
25. Maneka Gandhi v. Union of India, AIR 1978 SC 597 ……………………………………1
26. Manzar Sayeed Khan v. State of Maharashtra, (2007) 5 SCC 1…………………………12
27. R Puthuswamy v. Union Territory of Pondicherry, (1992) Mad L.J 665…………………9

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28. Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618; See also Praveen Pradhan v.
State of Uttaranchal, (2012) 9 SCC 734…………………………………………………..9
29. Ravi Kumar v. State of Uttar Pradesh, 124 (2005) DLT 1………………………………11
30. Romesh Thappar v. State of Madras, 1950 AIR (SC) 124………………………………..2
31. S Khushboo v. Kanniammal, 2010 5 SCC 600………………………………………......13
32. S. Ranga Rajan v. P. Jagjivan Ram, (1989) 2 SCC 574…………………………………..3
33. Sakal Papers (P) Limited v. Union of India, AIR 1962 SC 305………………..……….2,6
34. Sanju @ Sanjay Singh Sengar v. State Of M.P, 2007 Cri LJ 2020…………………….....9
35. Shiv Kumar Mishra v. State of Uttar Pradesh, (1978) Cr LJ 701……………………….13
36. State (N.C.T of Delhi) v. Navjot Sandhu,(2005) 11 SCC 600………………………..10,12
37. State of Tamil Nadu through CBI/SIT v. Nalini & Ors., (1999) 5 SCC 253…………….11
38. Subal Kumar dey v. State of Tripura (2007) Cri. L.J 1195…………...………………....14
39. Subramanian Swamy v. A. Raja (2012) 11 SCR 873……………………………………12
40. Supt. Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633…………………………6
41. Swamy Prahaladdas v. State of Madhya Pradesh and Anr.,1995 Supp. (3) SCC 438….....9
42. The Trustees of Safdar Hashmi Memorial Trust v. Government of NCT of Delhi, 2001
Cri. L.J. 3689 (Del)………………………………………………………………………14
43. United States v. Schwimmer, 279 U.S. 644 (1929)…………………………………….....2

STATUTES
1. The Indian Penal Code, 1860.
2. The Indian Constitution, 1950.
3. The Information Technology Act, 2000.
4. The Code of Criminal Procedure, 1973.

BOOKS REFERRED
1. M P Jain, Indian Constitutional Law, 8th Ed., 2018.
2. RA Nelson, Indian Penal Code, 1 Pg. 703- 1141, 11th Ed., Lexis Nexis, 2016.
3. Surendra Malik & Sudeep Malik, Supreme Court on Penal Code, 2nd Ed., 2018.
4. Lord Mackay, Halsbury’s laws of England 20 (4th Ed. 1973).

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5. Surendra Malik, Sumeet Malik and Sudeep Malik ,Information Technology &
Communication Cases, 3 EBC Publishing (P) Ltd, 2018.
6. Ratanlal & Dhirajlal, The Indian Penal Code, 33rd Ed., Justice K T Thomas Ed, 2016.
7. Bryan A Garner, Black’s Law Dictionary, 9th Ed., 2009.

JOURNALS AND ARTICLES

1. Parkhi Agarwal & Piyush Goyal, Online Freedom of Speech and Expression - A Critical
Analysis, 3 KIIT Student.
2. Robert Post, Participatory Democracy and Freedom of Free Speech, 97 Va. L. Rev. 477
(2011).
3. Swapnil Tripathi, My Curtailed Freedoms: A Jurisprudential take on the JNU incident, 6
GJLDP 143(2016).
4. Jack Balkin, Digital Speech and Democratic culture: A theory of freedom of expression for
the information society, 79 N.Y.U. L. Rev. 1 (2004).
5. Oliver Wendell Holmes, THE ESSENTIAL HOLMES 105 (Richard A. Posner ed., 1997).
6. J. Venkatesan, ‘Binayak Sen gets bail in Supreme Court’, THE HINDU, April 15, 2011
available at https://www.thehindu.com/news/national/Binayak-Sen-gets-bail-in-Supreme-
Court/article14685491.ece.
7. George Orwel, The Freedom of the Press, N.Y TIMES MAGAZINE, October 8, 1972
available at https://www.nytimes.com/1972/10/08/archives/the-freedom-of-the-press-
orwell.html.
8. William Oldnall Russell & J W Cecil Turner Russell on crime 12th Ed. 1964.
9. Mahmood Rooholamini, Concept of Abetment in the IPC, J. of Politics and L. 323 (2013).

ONLINE RESOURCES

1. SCC Online, http://www.scconline.com/

2. Westlaw India, http://www.westlawindia.com/
3. Manupatra, http://www.manupatra.com/

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STATEMENT OF JURISDICTION

The petitioner has approached the Hon’ble High Court of Indraprastha under Section 374(2) of
Shauryavarshian Code of Criminal Procedure, 1973.

…………………………………………………………………………………..

Section 374: Appeals from conviction

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or
an trial held by any other Court in which a sentence of imprisonment for more than seven years
[has been passed against him or against any other person convicted at the same trail], may appeal
to the High Court.

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STATEMENT OF FACTS

I. BACKGROUND

Shauryavarsh is a country in Southern part of continent, Jaysia having Indraprastha as its capital.
It has a written Constitution and has taken the provisions of Constitution of India 1950 verbatim
with other central and state laws and also various judicial decisions of India are referred in the
courts of Shauryavarsh. Since 1947, the region of Kashyap Pradesh is in a territorial dispute
between Shauryavarsh, Rudeistan and Redland.

II. POSTING A RWEET ON SOCIAL MEDIA BY APPELLANT

One day a suicide bomber was released in Kashyap Pradesh by Rudeistan based terrorist
organization. The attack shook the whole nation. In connection to this there was a nationwide
“bandh” called by BAS on 20th Feb 2019 in order to keep solidarity with the families of lost
heroes. Mr. Khursheed Lone Pandat an actor, a movie star and a business tycoon planned a success
party on the same day. On 18th he got information from managers that event can’t be performed
due to bandh. Aggrieved &Frustrated by the sudden cancellations, he rweeted on his social media
page; Saying that it is a dictatorial play by putting hash tags
“#ResistOppression#FightTyranny#CheenKeLengayAzaadi”, though he got insensitive remark on
his Rweet he reRweeted to his fan, Mr. Kaka Kumar ,President of Student Union, Jharjhari Nigam
Memorial University.

III. ACT IN FURTHERANCE TO THE RWEET POSTED BY APPELLANT

When a candle light march was concluding with a prayer on 20th Feb a group of students lead by
Mr. Kaka Kumar decided to oppose, resist & fight as called by Megastar and opposed by placing
placards which converted as a warzone. Curfew was imposed and the riot resulted into death of 17
people, several and destruction of huge property. FIR was filed against Khursheed & arrested by
Indraprastha police from his residence. He was charged under Section 117, 124A, 120B, 153A of
SPC and Section 66A of Shauryavarshian IT Act. District & Session Court found him guilty and
convicted him. Aggrieved from the conviction he approached Hon’ble High Court of Indraprastha.

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STATEMENT OF ISSUES

ISSUE 1

WHETHER THE CONVICTION OF APPELLANT UNDER SECTION 124A OF SPC IS

VIOLATIVE OF ARTICLE 19(1) (A) OF THE SHAURYAVARSHIAN CONSTITUTION?

ISSUE 2

WHETHER CONVICTION OF APPELLANT UNDER SECTION 66A OF

SHAURYAVARSHIAN INFORMATION TECHNOLOGY ACT IS JUSTIFIABLE?

ISSUE 3

WHETHER THE CONVICTION OF APPELLANT UNDER SECTION 117, 120B AND 153A
OF SPC IS VALID?

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SUMMARY OF ARGUMENTS

ISSUE 1

THAT THE CONVICTION OF APPELLANT UNDER SECTION 124A OF SPC IS

VIOLATIVE OF ARTICLE 19(1) (a) OF THE SHAURYAVARSHIAN CONSTITUTION.

The counsel for the appellant humbly submits that the conviction under Section 124A of SPC is
violative of Article 19(1) (a) of the Shauryavarshian Constitution. The rweet of appellant does not
make him liable for sedition and also his post cannot be considered as offensive.

ISSUE 2

THAT CONVICTION OF APPELLANT UNDER SECTION 66A OF

SHAURYAVARSHIAN INFORMATION TECHNOLOGY ACT IS NOT JUSTIFIABLE

The counsel for the appellant humbly submits that the conviction of appellant under Section 66A
of Shauryavarshian Information Technology Act is not justifiable. The terms in the provision of
Section 66A of Shauryavarshian IT Act, 2000 is vague and it imposes unreasonable restriction on
the freedom of speech and expression of the appellant.

ISSUE 3

THAT THE CONVICTION OF APPELLANT UNDER SECTIONS 117, 120B AND 153A
OF SPC ARE NOT VALID.

The counsel for the appellant humbly submits that the conviction under Section 117, 120B and
153A of SPC is not valid. The appellant was not involved in the violent clashes either by abetting
or by doing any action leading to criminal conspiracy. Thereby it is clear that the appellant did not
have any intention of promoting enmity between the groups.

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ARGUMENT ADVANCED

ISSUE 1
THAT THE CONVICTION OF THE ACCUSED UNDER SECTION 124A OF SPC IS
VIOLATIVE OF ARTICLE 19(1) (a) OF SHAURYAVARSHIAN CONSTITUTION.

(¶1.) The counsel for the appellant humbly submits that the conviction under Section 124A
of SPC is violative of Article 19(1) (a) of the Shauryavarshian Constitution. The rweet posted by
the appellant is his expression of opinion and thereby his conviction is violative of Article 19(1)
(a) of Shauryavarshian Constitution (1.1). In further the rweet cannot be brought under seditious
statement and thereby the appellant cannot be convicted under Section 124A of SPC (1.1.1).

1.1 THAT THE CONVICTION OF ACCUSED IS VIOLATIVE OF ARTICLE 19(1) (a)

OF SHAURYAVARSHIAN CONSTITUTION.

(¶2.) “Give me the liberty to know, to utter, and argue freely according to conscience,
above all liberties”1. Shauryavarshian being the largest democracy in the World, the right to
freedom of speech and expression is considered to be one of the first conditions of liberty for an
individual.2The Preamble of the Constitution, which is considered to be the heart of the
Constitution, has expressly provided that every individual will be provided right of liberty of
thought, expression, belief, faith and worship3

(¶3.) In Maneka Gandhi v. Union of India4, it was stated that “Democracy is based
essentially on free debate and open discussion, for that is the only corrective of Government action
in a democratic set up”. Freedom of speech and expression is important from the point of view of
the liberty of the individual and from the point of view of our democratic form of government.

1
Parkhi Agarwal & Piyush Goyal, Online Freedom of Speech and Expression - A Critical Analysis, 3 KIIT Student
L. Rev. 33 (2016).
2
Parkhi Agarwal & Piyush Goyal, supra note 1.
3
Constitution of India, 1950, Preamble.
4
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
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(¶4.) Freedom of speech lay at the foundation of all democratic organizations5. Freedom
of speech and expression of opinion is of paramount importance under a democratic Constitution
which envisages changes in the composition of legislatures and governments and must be
preserved.6 Beg, J. once quoted that the freedom of speech and of the press is the Ark of the
Covenant of Democracy because public criticism is essential to the working of its institutions 7

(¶5.) In Bharath Kumar K. Palicha v. State of Kerala8, which is later confirmed by the
Hon’ble Supreme Court in the case of Communist Party of India (M) v. Bharath Kumar9, where
the court held that calling for a bandh is unconstitutional because there is cessation of work,
business and profession which affects the economy and hampers the country’s national interest.

(¶6.) Justice Holmes has explicitly stated that: “If there is any principle of the Constitution
that more imperatively calls for attachment than any other, it is the principle of free thought, not
free thought for those who agree with us but freedom for the thought that we hate.”10 Article 19 of
the United Nations Universal Declaration of Human Rights, 1948 underlines that: “Everyone shall
have the right to hold opinions without interference” and “everyone shall have the right to freedom
of expression; the right shall include the freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or
through any other media of his choice”11.

(¶7.) In the present case, the rweet posted by the appellant should be considered as an
opinion and it will come under freedom of speech and expression. He has the right to express
opinion in public and it cannot be violated unless and until there is some reasonable ground.

1.1.1 THAT THE CONVICTION OF ACCUSED FOR SEDITION IS NOT JUSTIFIABLE

(¶8.) Under Article 124A of SPC, sedition is defined as whomever, by words, either spoken or
written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into

5
Romesh Thappar v. State of Madras, 1950 AIR (SC) 124.
6
Sakal Papers (P) Ltd. & Ors. v. Union of India, (1962) 3 SCR 842 at 866.
7
Bennett Coleman and Company & Ors. v. Union of India & Ors., (1973) 2 SCR 757 at 829.
8
Bharath Kumar K. Palicha v. State of Kerala, AIR 1997 Ker 291.
9
Communist Party of India (M) v. Bharath Kumar, (1998) 1 SCC 201.
10
United States v. Schwimmer, 279 U.S. 644 (1929).
11
Parkhi Agarwal & Piyush Goyal, supra note 1.
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hatred or contempt, or excites or attempts to excite disaffection towards, the Government

established by law in India shall be punished12. The main ingredients are:
a. Attempt to bring hatred by usage of words, signs or visual representations
b. Intention to cause disaffection towards government established by law.
There are also explanations that have been laid down in the statute under Section 124A of SPC
which acts as exceptions to the offence of sedition. The accused falls under the explanation 3 of
the Section, which reads as follows: comments expressing disapprobation of the administrative or
other action of the government without exciting or attempt to excite hatred, contempt or
disaffection, do not constitute an offence under this section.13

A) ATTEMPT TO BRING HATRED BY WORDS, SIGNS OR VISIBLE

REPRESENTATION

(¶9.) Democracy is a concept of self-determination and can only be experienced if the

citizens are provided with political autonomy.14 Here Jurist Post propounds that “whatsoever the
outcome maybe there shall not be any restriction on the freedom of speech in all forms”.15 The
essentials of free speech are interactivity, mass participation and to modify & transform the Indian
Culture.16 He distinguished free speech in a democracy from a republican theory of free speech to
state that the latter diminishes the importance of non-political expression and individual liberty,
whereas an ideal democratic culture is one where individuals have a fair opportunity to participate
in the decision making17.

(¶10.) Justice Holmes propounds that “the advocates of the group hatred should have
freedom of speech like anyone else, to make the kind of world they should like” and it is subjective
and emotional because the opinions differ and there is a raider that is put forth by Anthony Lewis
is acts of terrorism and group of people committing such acts. The effect of the words must be
judged from the standards of reasonable, strong-minded, firm and courageous men, and not those

12
Shauryavarshian Penal Code, 1860, § 124A.
13
Shauryavarshian Penal Code, 1860, Explanation 3 of § 124A.
14
Robert Post, Participatory Democracy and Freedom of Free Speech, 97 Va. L. Rev. 477 (2011).
15
Swapnil Tripathi, My Curtailed Freedoms: A Jurisprudential take on the JNU incident, 6 GJLDP 143(2016)
16
Jack Balkin, Digital Speech and Democratic culture: A theory of freedom of expression for the information society,
79 N.Y.U. L. Rev. 1 (2004).
17
Id.
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of weak and vacillating minds nor those who scent danger in every hostile point of view. 18 Mere
rising of slogans and naked swords in the air would not constitute an offence under this section.19

(¶11.) “Democracy would really be challenged if the shouting of slogans or making of

demonstration unnerve the executive and the liberty of the citizen is infringed upon. There is a
direct nexus between democracy and rule of law.”20 As Justice Khanna had rightly remarked in
one of his public speeches ‘man’s love of justice makes democracy possible but man’s inclination
to injustice makes democracy necessary’. Criticizing the present parliament cannot be considered
as bringing into hatred or content to excite disaffection towards the government established by
law”.

B) INTENTION TO CAUSE DISAFFECTION TOWARDS GOVERNMENT

(¶12.) In Balwant Singh & Anr. v. State of Punjab21, it was held that Section 124A of IPC
would be attracted only when the accused brings or attempts to bring into hatred to excite
disaffection towards the government established by law in India, by words either written or spoken.
The casual raising of the slogans once or twice by two individuals alone cannot be said to cause
disaffection towards the government. Criticism of public measures or comment on Government
action, however strongly worded, would be within reasonable limits and would be consistent with
the fundamental right of freedom of speech and expression.

(¶13.) Merely creating disaffection or creating feelings of enmity in certain people was not
good enough or else it would violate the fundamental right of free speech under Article 19(1) (a).22
In Common Cause & Anr. v. Union of India23, the contention was of the misuse of sedition law.
The court held that the principles stated in Kedar Nath case regarding causing of disaffection by
mere statement are followed. Sedition cannot be made out on the basis of materials in possession

18
S. Ranga Rajan v. P. Jagjivan Ram, (1989) 2 SCC 574.
19
Gurjatinder Pal Singh v. State of Punjab, (2009) 3 RCR (Cri) 224.
20
Alavi & Ors. v. State of Kerala, 1982 Cri. L.J 94.
21
Balwant Singh & Anr. v. State of Punjab, (1995) 3 SCC 214.
22
Kedar Nath Singh v. State of Bihar, (1962) 2 SCR 603.
23
Common Cause & Anr. v. Union of India, 2016 SCC 1087.
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rather it should be shown that there was active participation or aiding for the commission of the
act.24

(¶14.) In the present case, the appellant reacted against the government action through his
rweet but it was not against the government. There was no use of seditious language in the post
and also it does not result in instigating because any reasonable person reading the post will
identify it as an opinion only. Hence, he would fall under the explanation 3 of the Section 124A
of SPC.
ISSUE 2

THAT CONVICTION OF APPELLANT UNDER SECTION 66A OF

SHAURYAVARSHIAN INFORMATION TECHNOLOGY ACT, 2000 IS NOT
JUSTIFIABLE

(¶15.) The counsel for the appellant humbly submits that the conviction of appellant under
Section 66A of Shauryavarshian Information Technology Act is not justifiable. It is further stated
that the conviction of the appellant under Section 66A which is vague (2.1) and which is imposing
unreasonable restriction on his fundamental rights (2.2) is not justifiable.

(¶16.) Under Section 66A of Shauryavarshian Information Technology Act it is stated that
any person who sends offensive messages through communication services etc will be punished.25
Section 66A prohibits sending any electronic communication which contains any information
which is grossly offensive or has menacing character, or the sender knows to be false, but for the
purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal
intimidation, enmity, hatred or ill will sends, or is sent for the purpose of causing annoyance or
inconvenience or to deceive or to mislead the addressee or recipient about the origin of such
messages.

24
J. Venkatesan, ‘Binayak Sen gets bail in Supreme Court’, THE HINDU, April 15, 2011 available at
https://www.thehindu.com/news/national/Binayak-Sen-gets-bail-in-Supreme-Court/article14685491.ece.
25
Shauryavarshian Information Technology Act, 2000 § 66A.
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2.1 THAT SECTION 66A OF SHAURYAVARSHIAN IT ACT IS VAGUE

(¶17.) When a law uses vague expressions capable of misuse or abuse without providing
notice to persons of common intelligence to guess their meaning, it leaves them in a boundless sea
of uncertainty, conferring wide, unfettered powers on authorities to curtail freedom of speech and
expression arbitrarily.26 The expressions such as “grossly offensive” or “menacing” used in
Section 66A of Shauryavarshian IT Act, 2000 are so vague that there is no manageable standard
by which a person can be said to have committed an offence or not to have committed the offence.27

(¶18.) In Chintaman Rao v. State of Madhya Pradesh28, it was held that Section 66A of
Shauryavarshian IT Act is arbitrarily excessively and disproportionately invades the right of free
speech and upsets the balance between such rights and the reasonable restrictions that may be
imposed on such right. By depending upon the Judge’s notion of what is “grossly offensive” and
“menacing” the judicially trained minds would find a person guilty or not guilty and if they come
to diametrically opposite conclusions on the same set of facts it is obvious that those expressions
are vague.29

(¶19.) In further the definition of “information” is an inclusive one30 and it does not refer
to what the content of information can be. In fact, it refers only to the medium through which such
information is disseminated.31 Thus the public’s right to know is directly affected by Section 66A
of Shauryavarshian IT Act. Terms such as “inconvenience”, “annoyance”, “obstruction”, and “ill
will” provide for no explanation throughout the Act or any other legislation, making these terms
deceptive and increasing the chance of possible misuse of the provision. 32

26
Surendra Malik, Sumeet Malik and Sudeep Malik ,Information Technology & Communication Cases, 3 EBC
Publishing (P) Ltd, 2018.
27
DPP v. Collins, (2006) I WLR 2223.
28
Chintaman Rao v. State of Madhya Pradesh, 1950 SCR 759.
29
Chambers v. DPP, (2013) I WLR 1833.
30
Information Technology Act, 2000, § 2(I) (V).
31
American Communications Association v. Douds, 339 US 382 (1950).
32
A.K Roy v. Union of India, (1982) 1 SCC 271.
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2.2 THAT SECTION 66A OF SHAURYAVARSHIAN IT ACT IS IMPOSING

UNREASONABLE RESTRICTION ON THE FUNDAMENTAL RIGHTS.

(¶20.) Freedom of speech under the Constitution is much wider; it cannot be curtailed in
the interest of general public.33In order to impose a reasonable restriction “in the interest of public
order”, there shall be proximate relation between the restriction and the public order to be
achieved.34 Section 66A of Shauryavarshian IT Act has been criticized at large as it cannot be used
as reasonable restriction. If liberty means anything at all, it means the right to tell people what they
do not want to hear.35 Internet is a medium that enables us to indulge in free expression and speech
to people throughout the globe.

(¶21.) Emphasizing on the unreasonable restrictions that section 66A imposes on free
speech, it is said that the provision is subjective, undefined and has a low threshold.36 In addition,
they contended that the law has a “chilling effect” on the right to freedom of expression.37The
expressions used in the Section 66A of Shauryavarshian IT Act are expressions of inexactitude
and over board as a result of which it would fall foul of the repeated injunctions of the Supreme
Court that restrictions on the freedom of speech must be couched in the narrowest possible terms.38

(¶22.) In the present case the appellant cannot be convicted under Section 66A of
Shauryavarshian IT Act as the terms in the provision are vague and it impose unreasonable
restriction on freedom of speech and expression. In further Section 66A is capable of imposing
chilling effect on the right to freedom of speech and expression which makes the conviction of the
appellant unjustifiable.

33
Sakal Papers (P) Limited v. UOI, AIR 1962 SC 305.
34
Supt. Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633.
35
George Orwel, The Freedom of the Press, N.Y TIMES MAGAZINE, October 8, 1972 available at
https://www.nytimes.com/1972/10/08/archives/the-freedom-of-the-press-orwell.html.
36
Anoop M.K. v. Union of India & Ors., (2003) 1 UPLBEC 186.
37
Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.
38
Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166.
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ISSUE 3

THAT THE CONVICTION UNDER SECTION 117, 120B & 153A OF SPC IS INVALID

(¶23.) The counsel for the petitioner humbly submits that the conviction under Section 117,
120B and 153A of SPC is invalid. The appellant did not abet the commission of offence (3.1) and
not a party to the conspiracy (3.2). In furtherance to it the appellant did not have any intention of
promoting enmity between the groups (3.3).

3.1 THAT THE APPELLANT IS NOT LIABLE UNDER SECTION 117 OF SPC

(¶24.) The counsel on behalf of the appellant humbly submits that the appellant is not liable
under section 117 of SPC as there was (A) no instigation by the appellant in the commission of
an offence and (B) no mental element is proved to constitute an offence.

(¶25.) As per Section 117 of the SPC, “Whoever abets the commission of an offence by the
public generally or by any number or class of persons exceeding ten, shall be punished with
imprisonment of either description for a term which may extend to three years, or with fine, or
with both”. The word ‘abet’ is defined in Section 107 of SPC as follows: Abetment is constituted
by instigating a person to commit an offence, by engaging in a conspiracy to commit it or by
intentionally aiding a person to commit the offence.39

A) THE RWEET DOES NOT AMOUNT TO INSTIGATION

(¶26.) In order to constitute ‘instigation’, a person who instigates another has to provoke,
incite, urge or encourage doing of an act by the other, by goading or urging forward40. The meaning
of the word ‘goad’ means, ‘keep irritating or annoying somebody until he reacts’. ‘Urge’ means to
do advice or try hard to persuade somebody to do something especially by pushing or forcing such
person41.

(¶27.) In abetment, the statement or command or incitement given from the abettor to the
committer of the crime is to be considered as the actus reus in this case and the intention to induce

39
Shauryavarshian Penal Code, 1860 §107.
40
Chitresh Kumar Chopra v. State (Government of NCT of Delhi), 2009 16 SCC 605.
41
Black’s Law Dictionary, (19th ed., Bryan A Garnered., 2009).
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the person to commit the act for one’s self is the mens rea in such a case. Therefore, with the
merger of actus reus and mens rea, abetment becomes an offence.42In a criminal action, the general
conditions of penal liabilities are indicated in an old maxim “actus non facit reum, nisi mens sit
rea” ie, the act alone does not amount to guilt but it must be accompanied by a guilty mind.43
Instigation must have reference to the thing that was done44.

In the case the rweet of the appellant cannot said as instigation because he statements doesn’t refer
to any actions taken by kaka kumar, he expressed his opinion. Actus reus of the offence itself is
not proved .So we submit that the rweet of the appellant does not lead to instigation.

B) ABSENCE OF MENS REA

(¶28.) A person is said to instigate any other person to do an act which makes the other
person to do such act by any means possible, either direct or indirect. Mens rea is necessary
concomitant for instigation45. Any word uttered in a fit of anger or emotion without intending the
consequences to actually follow cannot be said to be instigation46. In order to convict a person of
abetting the commission of the crime it is not only necessary to prove that he has taken part in
those steps of the transaction which are innocent but in some way or other it is absolutely necessary
to connect him with those steps of the transaction which are criminal.47

(¶29.) In Mahendra Singh v. State of Madhya Pradesh48, it was held that common
knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be
uttered with mens rea. The individual will not be liable for abetment with a mere association to
the individual who has committed the crime. There needs to be sufficient proof that the individual
had willfully influenced and coerced the individual to commit the crime.

42
William Oldnall Russell & J W Cecil Turner Russell on Crime (12th Ed., 1964).
43
Lord Mackay, Halsbury’s laws of England 20 (4th Ed. 1973).
44
Ratanlal & Dhirajlal, The Indian Penal Code, (33rd edn., Justice K T Thomas Ed., 2016).
45
B Ammu v. State of Tamilnadu, 2009 Cri. L.J 866 Mad.
46
Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618; See also Praveen Pradhan v. State of Uttaranchal
(2012) 9 SCC 734.
47
R Puthuswamy v. Union Territory of Pondicherry, (1992) Mad L.J 665.
48
Mahendra Singh v. State of Madhya Pradesh, 1995 Supp.(3) SCC 731.
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(¶30.) In Swamy Prahaladdas v. State of Madhya Pradesh & Anr.49, it was stated that mere
words uttered by the accused to the deceased 'to go and die' were not even prima facie enough to
instigate the deceased to commit suicide and such kind of utterance of mere words does not contain
any intention or any instigation to commit the act. The individual has to have an intention to
commit the act which must be seen clearly in his statement to the other individual to convince him
to commit the act.50

(¶31.) The counsel humbly submits that as there was no instigation by the appellant he
cannot be held liable under section 117 of SPC.

3.2 THAT THE APPELLANT IS NOT GUILTY UNDER SECTION 120B OF SPC

(¶32.)As per Section 120 A of SPC “When two or more persons agree to do or cause to be
done- (A) an illegal act ,or (B) an act which is not illegal by illegal means, such an agreement
is designated a criminal conspiracy”.

A) NO AGREEMENT OR MEETING OF THE MINDS

(¶33.) The essence of the offence of conspiracy is the fact of combination by agreement.
The agreement may be expressed or implied or in part express and in part implied and the offence
continues to be committed so long as the combination persists, that is until the conspiratorial
agreement is terminated by completion of its performance or by abandonment or frustration or
however it may be”.51

(¶34.) One of the essential ingredient of this offence is there must be an agreement between
two or more persons to do an illegal act in pursuance of common object. Consensus ad idem which
means “meeting of minds” is necessary and “sine qua non” of the criminal conspiracy. Mere
knowledge or discussion is not sufficient .It is intention to commit crime and joining hands with
persons having the same intention. Along with intention there has to been an agreement to carry
out the object of the intention, which is an offence.52

49
Swamy Prahaladdas v. State of Madhya Pradesh & Anr., 1995 Supp. (3) SCC 438.
50
Sanju @ Sanjay Singh Sengar v. State of Madhya Pradesh, 2007 Cri. L.J 2020.
51
State (NCT) of Delhi v. Navjot Sandhu @Afzal Guru, (2005) 11 SCC 600.
52
26 Karen M. Douglas, Robbie M. Sutton, Aleksandra Cichocka, The Psychology of Conspiracy Theories, Pg. 538-
542 (2017).
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(¶35.) In Kehar Singh v. State (Delhi Administration)53, it was stated that if expression of
anger or protest is used as a piece of evidence against accused then all the people who feel agitated
must be held as members of the conspiracy which cannot be done. It also stated section 10 of the
IEA should be proved by the prosecution for the conviction of a person under conspiracy.

(¶36.) In State of Tamil Nadu through CBI/SIT v. Nalini and Ors.54, it was stated that
criminal conspiracy is committed when two or more persons agree to do or cause to be done an
illegal act or legal act by illegal means. It is intention to commit crime and joining hands with
persons having the same intention. Not only the intention, but there has to be agreement to carry
out the object of the intention, which is an offence.

(¶37.) An offence of conspiracy cannot be deemed to have been established on mere

suspicion and assumptions or inference which is not supported by cogent and acceptable
evidence.55 Meeting of minds of two or more persons for doing or causing to be done an illegal act
or an act by illegal means is sine qua non of criminal conspiracy. The one more essential element
of conspiracy is an overt act.56 Under Indian laws, in the case of a conspiracy other than a
conspiracy to commit an offence, some overt act is necessary to bring the conspiracy within the
purview of the criminal law57.

(¶38.) There should be an overt act done by all the conspirators for the commission of the
offence and based on those acts they will be convicted. Non-participant conspirators cannot be
found guilty of the offence or offences committed by the other conspirators.58 Criminal conspiracy
cannot be inferred on the mere fact that there were discussions or communications between the
parties. Suspicion, however, strong, cannot take the place of legal proof and the meeting of the
ministers itself could not constitute an offence of conspiracy.59

53
Kehar Singh v. State (Delhi Administration), (1988) 3 SCC 609.
54
State of Tamil Nadu through CBI/SIT v. Nalini & Ors., (1999) 5 SCC 253.
55
CBI, Hyderabad v. K.Narayana Rao, (2012) 9 SCC 512.
56
Ravi Kumar v. State of Uttar Pradesh, 124 (2005) DLT 1.
57
20, Marina Abalakina‐Paap, Walter G. Stephan, Traci Craig & W. Larry Gregory, Beliefs in Conspiracies, Pg. 637-
647, 1999.
58
State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600.
59
Subramanian Swamy v. A. Raja, (2012) 11 SCR 873.
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(¶39.) In the present case the appellant cannot be convicted under Section 120B of SPC as
there was no meeting of minds or any intention so as to commit an offence. The post of the
appellant is a mere statement made regarding the act of government in a fit of anger and hence it
cannot be brought as a ground for the conspiracy which happened later.

3.3 THAT THE APPELLANT SHOULD NOT BE CONVICTED UNDER § 153A OF SPC

(¶40.) Promoting enmity between different groups on grounds of religion, race, place of
birth, residence, language etc and doing acts prejudicial to maintenance of harmony is explained
under Section 153A of SPC.60 The main ingredients are:
a. The act of promoting enmity between different groups on grounds of religion, race, place
of birth, residence, language, caste, community or any other group.
b. Acts prejudicial to the maintenance of harmony between different groups or castes or
communities, if the acts disturb public tranquility.
c. Acts causing fear or alarm or a feeling of insecurity among members of any religious,
racial, language or regional group or caste or community by use of criminal force or
violence against them.

(¶41.) In the present case the rweet posted was just an opinion of the appellant on the
government action which was done without any intention to cause enmity between the groups and
also there was no involvement of two groups.

A) PROMOTING ENMITY BETWEEN TWO DIFFERENT GROUPS

(¶42.) In order to attract Section 153A of IPC, there should be at least two groups or
communities involved.61 Any statement made merely without any intention to promote enmity and
also which was not made on behalf of any group or against any particular group will not make the
person liable under Section 153A of IPC.62 If any controversial statement is made by any individual
in an interview for a magazine with regard to premarital sexual relationship of people living in the

60
Shauryavarshian Penal Code, 1860 §153A.
61
Manzar Sayeed Khan v. State of Maharashtra, (2007) 5 SCC 1.
62
S Khushboo v. Kanniammal, 2010 5 SCC 600.
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bigger cities of India and if called for the societal acceptance of the same without mentioning it on
behalf of any group, he cannot be made liable under Section 153A of IPC.63

(¶43.) Mens rea is a necessary ingredient for the offence under Section 153A of
IPC.64The accused should have intention to cause disorder or incite people for the promotion of
feeling of enmity, hatred or ill-will between different religious or racial or linguistic or religious
groups or castes and communities, it is necessary that at least two such groups or communities
should be involved65. Further it was observed that merely inciting the feeling of one community
or group without reference to any other community or group cannot attract this section.66

(¶44.) In Joy Cherian v. Sub Inspector of Police67, it was held by the court that merely
because some publications have been made without the intention of creating enmity between two
groups which is likely to affect the public disorder is not sufficient to attract the offence under
Section 153A of SPC. The intention of the writer has to be judged not only from the words used
in a particular part but it should be taken as a whole.68 Where the views expressed in an article, are
purely political in nature, this section would not be attracted even though they give a call to the
poor masses to rebel against the capitalist class69.

B) INTENTION

(¶45.) If any words spoken or written are crude and abusive, then for making a prima
facie case in such circumstances, it is essential to establish that there was a deliberate “intention”
on the part of a person to promote enmity. It has to be further established that his act was prejudicial
to the maintenance of harmony or is likely to disturb the public order. The intention to cause
disorder or incite the people to violence is the sine qua non of the offence under 153A of IPC70.

63
Surendra Malik & Sudeep Malik, Supreme Court on Penal Code, (2nd ed., 2018).
64
Balwant Singh & Anr. v. State of Punjab, 1995 3 SCC 214.
65
Shiv Kumar Mishra v. State of Uttar Pradesh, (1978) Cr LJ 701.
66
Bilal Ahmed Kaloo v. State of A.P, (1997) 7 SCC 431.
67
Joy Cherian v. Sub Inspector of Police, 2015 (2) KHC 570.
68
Iswari Prasad Sharma v. Emperor, AIR 1927 Cal 747.
69
Supra, note 65
70
‘Be Cautious in Invoking Sensitive Sections against Authors: Court’ The Hindu, April 22, 2007 available at
http://www.hinduonnet.com/2007/04/22/stories/2007042201611000.htm.
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(¶46.) It is firmly established that criminality under Section 153A of SPC attach to the
manner in which the act is done. If the words spoken or written are couched in temperate, dignified
and mild language, and do not have the tendency to insult the feelings of any section of the people,
penal consequences do not follow.71Absence of malicious intention is a relevant factor to judge
whether the offence is committed.72

(¶47.) In the present case the appellant did not have any intention to promote enmity
between different groups. In the rweet the language used is mild and it does not have the tendency
to insult the feelings of any section. In furtherance to it in order to attract Section 153A of SPC
there should be involvement of two different groups which is not seen in this case.

71
Subal Kumar dey v. State of Tripura, (2007) Cri. L.J 1195.
72
The Trustees of Safdar Hashmi Memorial Trust v. Government of NCT of Delhi, 2001 Cri. L.J. 3689 (Del).
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PRAYER

WHEREFORE, In the light of issues raised, authorities cited and arguments advanced it is most
humbly and respectfully requested before the Hon’ble High Court of Judicature at Indraprastha to
adjudge and declare:
1. That the conviction of appellant under Section 124A of SPC is violative of Article 19(1)
(a) of the Shauryavarshian Constitution.
2. That the conviction of appellant under Section 66A of Shauryavarshian IT Act, 2000 is not
justifiable.
3. That the conviction made by the lower court under Section 117, 120B and 153A of SPC is
not valid.
4. That the acquittal should be granted.
The court may also be pleased to pass any other order, which this Hon’ble court may deem fit in
the light of justice, equity and good conscience.

All of which is humbly prayed,

Sd/-

Counsel for the Appellant

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