@case Law

SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.
Page 1 Thursday, April 18, 2024

2ND SHRIPrinted
RAMSWAROOP MEMORIAL
For: Padhmaavathy UNIVERSITY
KS, Sastra University NATIONAL (VIRTUAL) MOOT COURT COMPETITION
SCC Online Web Edition: http://www.scconline.com
© 2024 EBC Publishing Pvt. Ltd., Lucknow.
2ND SHRI RAMSWAROOP MEMORIAL UNIVERSITY NATIONAL (VIRTUAL) MOOT COURT

COMPETITION
TC-11
IN THE HON’BLE SUPREME COURT OF

FREEDONIA
IN THE MATTERS OF JACK MIRANDA
(PETITIONER)
V
UNION OF FREEDONIA (DEFENDANT)
Writ Petition (Under Article 32 of the constitution of India, 1950)
COMPENDIUM FILED ON BEHALF OF THE DEFENDANT
UPON THE SUBMISSION OF THE HON’BLE CHIEF JUSTICE AND OTHER COMPANION JUSTICES OF
THE CONSTITUTION BENCH OF THE SUPREME COURT
MOST RESPECTFULLY
1
Memorial for Respondent
Printed For: Padhmaavathy KS, Sastra University
Criminal Appeal No 20 of 2011 and Criminal Appeal No 54 of 2011
Vinayak Binayak Sen v. State of Chhattisgarh
2011 SCC OnLine Chh 30
(BEFORE T.P. SHARMA AND R.L. JHANWAR, JJ.)
Dr Vinayak Binayak Sen

Pijush Piyush Babun Guha .…. Petitioners
v.
State of Chhattisgarh .…. Respondents
Mr. Ram Jethmalani and Mr. Surendra Singh, Senior Advocates with Ms. Nitya Ram
Krishan, Ms. Lata Krishna Murti,
Mr. Kishore Bhaduri, Additional Advocate General/Additional Public Prosecutor with
Mr. Ashutosh Singh K
Criminal Appeal No 20 of 2011 and Criminal Appeal No 54 of 2011
Decided on February 10, 2011
Judgement
{Criminal appeal under Section 374(2) of the Code of Criminal Procedure}
The following order of the Court was passed by T.P. Sharma, J: -
1. Applications under Section 389 of the Code of Criminal Procedure, 1973, (for short
‘the Code’), I.A. No. 1 filed on behalf of Vinayak (Binayak) Sen in Cr.A. No. 20/2011
and I.A. No. 1 filed on behalf of Pijush (Piyush) Guha @ Bubun Guha in Cr.A. No.
54/2011 for suspension of sentence and grant of bail during the pendency of appeal
against the judgment of conviction & order of sentence dated 24-12-2010 passed by
the 2nd Additional Sessions Judge, Raipur in Sessions Trial No. 182/2007 are being
disposed of by this common order.
2. Appellant in Cr.A. No. 20/2011 Binayak Sen has been convicted for commission of
the offence of sedition punishable under Section 124A of the IPC; Sections 8(1), 8(2),
8(3) & 8(5) of the Chhattisgarh Vishesh Jan Suraksha Adhiniyam, 2005 (for short ‘the
Act, 2005’); and Section 39(2) of the Unlawful Activities (Prevention) Act, 1967 (for
short ‘the Act, 1967’) and sentenced as under: -
Conviction Sentence
Sec.124A read with Imprisonment for life & fine of
Sec. 120B of the Rs. 5,000/-, in default additional
IPC RI for one year.
Sec. 8(1) of the RI for two years & fine of
Act, 2005 Rs. 1,000/-, in default additional
RI for three months.

High Court of Chhattisgarh relating to its veracity. As per his written defence, for all
the aforesaid reasons, the police of the State and the State Government have
harboured grudge against him, and the then DGP has also threatened him to take
action against PUCL and its office bearers which has been published in the newspaper.
In his written defence, the appellant has also claimed that in his capacity as a Human
Rights worker he was approached by the family of Narayan Sanyal to look after his
health and well being after he was brought to Raipur jail in 2006. When Narayan
Sanyal was in Raipur jail he visited Raipur jail along with lawyer and after obtaining
permission from the police authorities, he several times visited jail as a PUCL office
bearer to meet Narayan Sanyal. During his visit, he played a role in facilitating the
surgery of Narayan Sanyal. During the aforesaid period, there was considerable
correspondence between the prisoner's family, jail administration and medical
authorities with him. He acted upon the letter received from one Madanlal Barkhade by
post about prison conditions in Raipur Central Jail which he released to the press.
Documents recovered from his house are ordinary and transparent conduct of his work,
he has not received any document secretly or clandestinely. One document was sent
to him by post by Shri Govindan Kutty, Editor of Peoples' March. He has also received
another document No. A20 written by Madanlal Barkhade and document No. A21 by
Dr. Kalpana Kannabiran. Articles A23 & A26 were available for distribution in a seminar
on the Salwa Judum organized by Nelson Mandela Centre for Peace and Conflict
Resolution, Jamia Milia Islamia, New Delhi to which he was invited. Article A24 was
also received by him by post. Some newspaper clippings were also seized from his
house. He has also taken defence that during the course of search and seizure of
documents which were seized by police officer Rajput, under Rajput's dictation seizure
memos were prepared by TI Jagrit. Copy of charge sheet was received by his counsel
Mr. Amit Banerjee who has pointed out that documents A19 to A24 do not bear the
signature of panch witnesses and copies of documents A25 to A37 have not been
supplied to him despite the court order. Computer and DVD have been seized from his
house, but contents of computer were copied in his absence. He has also taken
defence that he has never seen Deepak Choubey (PW-7), he did not introduce Narayan
Sanyal to him and he has been falsely implicated and prosecuted, and the documents
have been fabricated by police authorities.
8. Mr. Ram Jethmalani contends that by written defence appellant Binayak Sen has
categorically explained the entire situation, the circumstances of his working, his
meeting with Narayan Sanyal, possession of documents and fabrication of documents
by police authorities. This is evidence against the prosecution and unless it is proved
false, same is admissible in evidence under the law. Mr. Ram Jethmalani further
contends that every circumstance which the prosecution proposes to rely and which
may be treated against the accused is required to be put to the accused for obtaining
his explanation/answer under Section 313 of the Code, and if the circumstances are
not put before the accused under Section 313 of the Code, same cannot be used
against the accused. Mr. Ram Jethmalani also contends that if it is considered that the
appellant has criticized the action and activities of the government or police, and even
if he had gone to the extent of saying that the Government missionaries have failed,
then also same would be within the ambit of Right to Freedom of speech and
expression protected under Articles 19(1)(a) & 19(2) of the Constitution of India.
9. Mr. Ram Jethmalani placed reliance in the matter of Sharad Birdhichand Sarda v.
State of Maharashtra2 in which the Supreme Court has held that circumstances not
put to the appellant in his statement under Section 313 of the Code must be
completely excluded from consideration because the appellant did not have any
chance to explain them. Mr. Ram Jethmalani further placed reliance in the matter of
memo reveals that articles have been sealed, but evidence of B.S. Maravi (PW-69) -
Senior Superintendent of Police reveals that at the time of granting permission for
registration of FIR as required under sub-section (3) of Section 16 of the Act, 2005, he
perused the documents seized from Piyush Guha brought before him along with Ex.P-
179. This reveals that the documents were not sealed and there was likelihood of
tampering. The prosecution has utterly failed to produce any evidence against
appellant Piyush Guha relating to his association with any organization which has been
declared unlawful or which are unlawful organizations and any activity in association
with the aforesaid organizations and, therefore, his conviction & sentences for the
aforesaid offence are not sustainable under the law.
20. Mr. Mahendra Dubey placed reliance upon the order dated 3-2-2011 passed by the
Supreme Court in the matter of Arup Bhuyan v. State of Assam {Cr.A. No. 889/2007}
in which the Supreme Court has held that mere membership of a banned organization
will not make a person a criminal unless he resorts to violence or incites people to
violence or creates public disorder by violence or incitement to violence.
21. On the other hand, Mr. Kishore Bhaduri, learned Additional Advocate
General/Additional Public Prosecutor appearing on behalf of the State/respondent,
vehemently opposed the applications and submitted that in order to prove aforesaid
charges the prosecution has examined sufficient number of witnesses and has also
proved the documents. Defence has also examined defence witnesses and has proved
the documents. Evidence adduced on behalf of the prosecution is sufficient for drawing
inference that conviction of the appellants is well founded. At the stage of considering
application under Section 389(1) of the Code for suspension of sentence and grant of
bail during the pendency of appeal, no meticulous scrutiny of evidence is required. At
the time of such consideration, defence of innocence is not available to the appellant
who has been convicted & sentenced by the court of competent jurisdiction. Mr.
Kishore Bhaduri while relying upon the evidence of various witnesses and documents,
further submitted that as held by the Supreme Court in Kedar Nath's case (supra),
criticism of public measures or comment on Government action, however strongly
worded, would be within reasonable limits and would be consistent with the
fundamental rights of freedom of speech and expression. It is only when the words,
written or spoken, etc. which have the pernicious tendency or intention of creating
public disorder or disturbance of law and order that the act of the person falls within
the ambit of sedition. In the present case, the appellants have crossed the limits of
criticism. Mr. Kishore Bhaduri also submitted that sentence imposed upon the accused
after appreciation of evidence should not be suspended in a routine manner.
22. Mr. Kishore Bhaduri placed reliance in the matters of State of Maharashtra v.
Madhukar Wamanrao Smarth8 and Sidhartha Vashisht alias Manu Sharma v. State
(NCT of Delhi)9 in which the Supreme Court has held that suspension of sentence only
on the ground that bail granted during trial was not misused and likelihood of delay in
disposal of appeal is not proper.
23. These are applications under Section 389(1) of the Code for suspension of
sentence and grant of bail to the appellants namely Binayak Sen & Piyush Guha during
the pendency of appeals. The appellants have been convicted & sentenced vide
judgment dated 24-12-2010 for commission of aforesaid offences and sentenced to
undergo imprisonment for life along with other sentences.
24. By detailed arguments and comprehensive presentation on behalf of the

appellants, learned counsel for the appellants have submitted that even on merits,
conviction of the appellants is not sustainable under the law and evidence collected on
“6. Section 389 of the Code deals with suspension of execution of sentence pending
the appeal and release of the appellant on bail. There is a distinction between bail and
suspension of sentence. One of the essential ingredients of Section 389 is the
requirement for the Appellate Court to record reasons in writing for ordering
suspension of execution of the sentence or order appealed. If he is in confinement, the
said Court can direct that he be released on bail or on his own bond. The requirement
of recording reasons in writing clearly indicates that there has to be careful
consideration of the relevant aspects and the order directing suspension of sentence
and grant of bail should not be passed as a matter of routine.
7. The Appellate Court is duty bound to objectively assess the matter and to record
reasons for the conclusion that the case warrants suspension of execution of sentence
and grant of bail. In the instant case, the only factor which seems to have weighed
with the High Court for directing suspension of sentence and grant of bail is the
absence of allegation of misuse of liberty during the period the accused-respondent
was granted parole.”
30. While dealing with same question, the Supreme Court in Madhukar Wamanrao's
case (supra) has held even in case of cheating, forgery and conspiracy, the Court is
required to consider gravity of offence, and considering gravity of offence, order of
suspension was reversed. While dealing with same question, the Supreme Court in the
matter of Sidhartha Vashisht (supra) has held that at the time of considering
suspension of sentence the Court is required to consider seriousness of offence,
manner in which it was said to have been committed, gravity of offence and time for
hearing the appeal.
31. In the present case, conviction is inter alia for offence of conspiracy and sedition.
It is trite to say that for constituting the offence of conspiracy and sedition it is neither
necessary that the person accused should himself be the author of the seditious
material nor is it necessary that there should be actual or attempted hatred, contempt
or disaffection, brought or excited, by the accused himself. The existence of conspiracy
can be gathered from circumstances leading to irresistible inference of an agreement
between two or more persons. Once conspiracy is proved the act of one conspirator
becomes act of the other.
32. During course of trial, the prosecution examined 95 witnesses and proved 129
articles and 417 exhibits. Defence examined eleven witnesses and produced 40
documents.
33. As per case of the prosecution in a nutshell, co-accused Narayan Sanyal is a

hardcore naxalite and member of banned organizations, he was having close intimacy
with appellant Binayak Sen and he was arrested by Ch. Deva Reddy (PW-59) on 3-1-
2006 at Bhadrachalam bus stand. Co-accused Narayan Sanyal was required in cases
registered in this State and he was detained in Raipur Central Jail where after
obtaining permission from authorities, appellant Binayak Sen visited Raipur jail for
meeting Narayan Sanyal for thirty-three times from 26-5-2006 to 30-4-2007.
Appellant Piyush Guha was arrested on 6-5-2007 while he was moving near Raipur
Railway Station and three letters Articles 8, 9 & 10, of which, one is written in Bengali
were seized from the possession of appellant Piyush Guha along with other articles. As
per evidence of prosecution witnesses, appellant Piyush Guha made confession before
police that those three letters have been given by Narayan Sanyal to appellant Binayak
Sen for sending the same to Kolkata and appellant Binayak Sen has handed over those
letters to appellant Piyush Guha, but this part of evidence i.e. confessional statement
is not admissible in evidence. However, the fact remains that prior to seizure of these
41. Men in uniform are also human beings and citizens of this country. In a loose
sense they personify and represent the law and order enforcement as well as coercive
arm of the Government. In the context of present case, they are members of armed
forces belonging to the State police force as well as the troops/battalions of
paramilitary and other forces under the control of Government of India such as Naga
Battalion and CRPF. They work in the remote disturbed forest areas of the State of
Chhattisgarh for restoration of peace and law & order. Aforesaid documentary evidence
reveal that these unlawful organizations have been indiscriminately targeting the
armed forces in the name of spreading awareness and countering atrocities by men in
uniform, thereby the attempt has been to excite disaffection and feeling of disloyalty
and enmity towards the Government established by law, particularly because the
movement is neither confined to any particular atrocity by men in uniform nor is
against any identified group. It appears to be a general rebellion movement targeting
any and every men in uniform just because they wield State's legitimate power of
coercion, thereby exposing the emphasis of the movement to be of having and
spreading disloyalty and enmity towards the Government established by law.
42. As held by the Supreme Court in the matter of Kedar Nath (supra), every man has
fundamental right of freedom of speech and expression under Article 19 of the
Constitution of India, but citizen has no right to create public disorder or disturbance
of law and order, such fundamental right is required to be exercised within reasonable
limit. The organizations have right to oppose the public policy and the Government in
lawful manner, even they may oppose to the extent of their condemnation, but they
are not authorized to excite or attempt to excite disaffection towards the Government
established by law or to excite disorder.
43. As per evidence adduced on behalf of the prosecution, appellant Piyush Guha &
accused Narayan Sanyal are members of maoist group and involved in naxalite
activities, they have created disloyalty and enticed public against the State machinery
resulting into huge deaths of members of armed forces and robbery of arms &
ammunition from police, even from the police stations. Appellant Binayak Sen is
closely associated with Narayan Sanyal and other alleged hardcore naxalites namely
Shankar Singh, Amita Shrivastava & Malti @ K.S. Priya who are absconding after arrest
of the appellants herein.
44. In case of conspiracy, normally no direct evidence and direct connection of the
accused with other conspirators would be possible. Conspiracy is required to
considered in the light of entire circumstances and results of circumstances. At this
stage, defect in framing of charge or distinct findings relating to such charge cannot
be considered. Even otherwise, such defects would generally be procedural lapses
curable as per Section 464 of the Code.
45. Hard copy of the computer record found in possession of appellant Binayak Sen
reveals the names of Shankar Singh, Malti @ K.S. Priya & Prafull Jha against whom
cases like aforesaid nature are pending. As per written defence of appellant Binayak
Sen, he is State level President of PUCL and in Chhattisgarh, PUCL has been in the
forefront of exposing atrocities of police and atrocities by men in uniform against
vulnerable sections. The appellant has worked in remote rural and forest areas relating
to the aforesaid work i.e. exposing atrocities of police and also atrocities by men in
uniform against vulnerable sections.
46. As per evidence collected on behalf of the prosecution, these remote areas and
forest areas are mostly affected by naxalite problem where most members of armed
force have been killed in incidents by local groups who have looted arms &
50. As held by the Supreme Court in Arup Bhuyan's case (supra), mere membership
of a banned organization will not make a person a criminal unless he resorts to
violence or incites people to violence or creates public disorder by violence or
incitement to violence. However, in the present case, evidence adduced on behalf of
the prosecution shows substantive involvement of the appellants in seditious
activities. The case of Arup Bhuyan (supra) is distinguishable on facts to that of the
present case.
51. As per written defence and defence taken by appellant Binayak Sen, he is
President of Chhattisgarh State PUCL unit. PUCL is in the forefront of exposing
atrocities of police and atrocities by men in uniform against vulnerable sections.
Aforesaid articles reveal that rural and forest areas where the appellant has worked are
affected by naxalite problem and also by the unlawful organizations working in those
areas. Innocent people residing in those areas are being killed along with members of
armed force/police and robbery of arms & ammunitions has become routine and
frequent phenomenon. By using land mines, members of unlawful organizations are
destroying anti-land mine vehicles of armed forces. Appellant Binayak Sen has not
made any demand to these organizations whom he has made aware from police
atrocities to refrain from violence. Contention of Mr. Surendra Singh that the
organizations in question were declared to be unlawful with effect from 12-4-2009 for
a period of one year does not appear to be sound in view of earlier notification No.
14/2006 dated 12-4-2007 available on record.
52. In case of conspiracy direct evidence would not be possible and the Court is
required to consider circumstantial evidence and the circumstances exist in this case
which lead to irresistible inference that the appellants along with unlawful
organizations were at consensus ad idem with respect to their aforesaid acts shown to
have been done against the Government established by law in the name of spreading
awareness and opposing atrocities of men in uniform. Men in uniform are not only local
police men from this State but also are those members of Union of India's armed
forces who are domiciles of other States and had to loose their lives for the sake of
maintaining peace and order in remote areas of Chhattisgarh.
53. Documentary and oral evidence adduced on behalf of both the parties, explanation
given by appellants Binayak Sen & Piyush Guha in their examination under Section
313 of the Code and written defence submitted by appellant Binayak Sen are sufficient
for drawing inference that conviction of the appellants under Sections 124A read with
Section 120B of the IPC; 8(1), 8(2), 8(3), 8(5) of the Act, 2005; and 39(2) of the Act,
1967, are prima facie legally sustainable. Considering nature and gravity of offence,
especially the offence of sedition, we do not find any ground for suspension of
sentences and grant of bail to appellant Binayak Sen in Cr.A. No. 20/2011 and
appellant Piyush Guha in Cr.A. No. 54/2011, during the pendency of appeals.
54. Consequently, I.A. No. 1 filed on behalf of Binayak Sen in Cr.A. No. 20/2011 and
I.A. No. 1 filed on behalf of Piyush Guha in Cr.A. No. 54/2011 are liable to be
dismissed and they are hereby dismissed.
———
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Page 1 Friday, April 19, 2024
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
TruePrint™ source: LR published by ICLR, © 2024 Incorporated Council Of Law Reporting, London.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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TruePrint™ source: ILR (Delhi), © 2024 Delhi High Court.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.

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SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.

Page 1 Thursday, April 18, 2024

2ND SHRI RAMSWAROOP MEMORIAL UNIVERSITY NATIONAL (VIRTUAL) MOOT COURT

IN THE HON’BLE SUPREME COURT OF

IN THE MATTERS OF JACK MIRANDA

Writ Petition (Under Article 32 of the constitution of India, 1950)

COMPENDIUM FILED ON BEHALF OF THE DEFENDANT

Criminal Appeal No 20 of 2011 and Criminal Appeal No 54 of 2011

Vinayak Binayak Sen v. State of Chhattisgarh

2011 SCC OnLine Chh 30

(BEFORE T.P. SHARMA AND R.L. JHANWAR, JJ.)

Dr Vinayak Binayak Sen

{Criminal appeal under Section 374(2) of the Code of Criminal Procedure}

The following order of the Court was passed by T.P. Sharma, J: -

Sec.124A read with Imprisonment for life & fine of

Sec. 120B of the Rs. 5,000/-, in default additional

IPC RI for one year.

Sec. 8(1) of the RI for two years & fine of

Act, 2005 Rs. 1,000/-, in default additional

RI for three months.

24. By detailed arguments and comprehensive presentation on behalf of the

33. As per case of the prosecution in a nutshell, co-accused Narayan Sanyal is a

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