1

TABLE OF CONTENTS

SL. No. DELINEATIONS PAGE

1. INDEX OF AUTHORITIES 2

2. STATEMENT OF JURISDICTION 3

3. STATEMENT OF FACTS 4

4. STATEMENT OF ISSUES 5

5. SUMMARY OF ARGUMENTS 6

6. ARGUMENTS ADVANCED 7

7. PRAYER 11

Gaurav Singh Ghurayya Roll NO. 177041, Section – A First Year

 2

INDEX OF AUTHORITIES

CASES
1. Chairman, Railway Board & Ors vs Mrs. Chandrima Das & Ors, 2000
2. Anwar vs. State of J & K, AIR 1971 SC 337 = 1971 (1) SCR 637 = (1971) 3 SCC 104
3. Bandhua Mukti Morcha vs. U.O.I., AIR 1984 SC 802 = 1984 (2) SCR 67 = (1984) 3 SCC
4. Bodhisatwa vs. Ms. Subdhra Chakroborty (1996) 1 SCC 490
5. State of Rajasthan vs. Mst. Vidhyawati AIR 1962 SC 933,
6. Gujarat vs. Memon Mahomed Haji Hasan AIR 1967 SC 1885
7. Smt. Basava Kom Dyamogouda Patil vs. State of Mysore AIR 1977 SC 1749
8. State through Reference vs Ram Singh & Ors. on 13 March, 2014, Delhi High Court

Statutes
1. THE CONSTITUTION OF INDIA
2. THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) BILL, 2015

ABBREVIATIONS
ABBREVIATION ACTUAL TERM ACTUAL TERM
& And
A.P. Andhra Pradesh
CrPC Criminal Procedure Code
HC High Court
Ld. Learned
GUJ Gujrat
SC Supreme Court Supreme Court
SCC Supreme Court Cases Supreme Court Cases
u/s Under Section(s) Under Section(s)
Vs. Versus Versus
Hon’ble Honorable Honorable

Gaurav Singh Ghurayya Roll NO. 177041, Section – A First Year

 3

STATEMENT OF JURISDICTION

The appellants have approached the Hon’ble Supreme Court of India under Article 136 of the
Constitution of India. Leave has been granted by this Hon’ble Court and the matter has now been
listed for arguments. The provision under which the appellant has approached this Hon’ble Court
and to which the respondent humbly submits, is read herein under as:

Article 136 of the Constitution of India, 1950:

“(1) notwithstanding anything in this chapter, the supreme court may, in its discretion, grant special
leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter
passed or made by any court or tribunal in the territory of India.
(2) nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or
made by any court or tribunal constituted by or under any law relating to the armed forces.”

Gaurav Singh Ghurayya Roll NO. 177041, Section – A First Year

 4

STATEMENT OF FACT

Heena Ibraham, a citizen of Bangladesh came to India on official duty in the month of December
2016 before returning to Bangladesh, she wanted to visit Ajmer sharif. With that intent in mind,
she arrived at Calcutta on 24th December, 2016 and stayed at a hotel at 10, Sudder Street, Police
Station Taltola. She arrived at Howrah Railway Station on 01st January, 2017 at about 14.00 hours
to avail Jodhpur Express at 23.00 Hours for paying a visit to Ajmer Sharif She had, however, a
wait listed ticket and so she approached a Train Ticket Examiner at the Station for confirmation of
berth against her ticket. The Train Ticket Examiner asked her to wait in the Ladies Waiting room.
She accordingly came to the ladies waiting room and rested there at about 17.00 hours on 01st
January, 2017 two unknown persons (later identified as one Ashoke Singh, a tout who posed
himself as a very influential person of the Railway and Siya Ram Singh a railway ticket broker
having good acquaintance with some of the Railway Staff of Howrah Station) approached her,
took her ticket and returned the same after confirming reservation in Coach No.S-3 (Berth No.17)
of Jodhpur Express. At about 20.00 hours Siya Ram Singh came again to her with a boy named
Kashi and told her to accompany the boy to a restaurant if she wanted to have food for the night.
Accordingly at about 21.00 hours she went to a nearby eating house with Kashi and had her meal
there. Soon after she had taken her meal, she vomited and came back to the Ladies waiting room.
At about 21.00 hours Ashoke Singh along with Rafi Ahmed a Parcel Supervisor at Howrah Station
came to the Ladies Niwas before boarding the train. She appeared to have some doubt initially but
on being certified by the lady attendants engaged on duty at the Ladies Waiting Room about their
credentials she accompanied them to Yatri Niwas. Sitaram Singh, a khalasi of electric Department
of Howrah Station joined them on way to Yatri Niwas. She was taken to room No.102 on the first
floor of Yatri Niwas. The room was booked in the name of Ashoke Singh against Railway Card
pass No. 3638 since 30th December 2016. In room No.102 two other persons viz. one Lalan Singh,
Parcel Clerk of Howrah Railway Station and Awdesh Singh, Parcel Clearing Agent were waiting.
Heena Ibraham suspected something amiss when Ashoke Singh forced her into the room. Awdesh
Singh bolted the room from outside and stood on guard outside the room. The Sunil Sharma (Age
16 yrs. boy helper in railway on contract basis) took liquor inside the room and also forcibly
compelled her to consume liquor. All the five persons who were present inside the room brutally
violated, Heena Ibraham , it is said, was in a state of shock and daze. When she could recover she
managed to escape from the room of Yatri Niwas and came back to the platform where again she
met Siya Ram Singh and found him talking to Ashoke Singh. Seeing her plight Siya Ram Singh
pretended to be her saviour and also abused and slapped Ashoke Singh. Since it was well past
midnight and Jodhpur Express had already departed, Siya Ram requested Heena Khatoon to
accompany him to his residence to rest for the night with his wife and children. He assured her to
help entrain Poorva Express on the following morning. Thereafter Siyaram accompanied by Ram
Samiram Sharma, a friend of Siyaram took her to the rented flat of Ram Samiram Sharma at 66,
Pathuriaghata Street, Police Station Jorabagan, Calcutta. There Siyaram raped Heena and when
she protested and resisted violently Siyaram and Ram Samiran Sharma gagged her mouth and
nostrils intending to kill her as a result Heena bled profusely. On being informed by the landlord
of the building following the hue and cry raised by Heena Ibraham , she was rescued by Jorabagan
Police."

Gaurav Singh Ghurayya Roll NO. 177041, Section – A First Year

 5

DECISION TAKEN BY HON’BLE HIGH COURT

It was on the basis of the above facts that the High Court had awarded a sum of Rs.10 lacs as
compensation for Smt. Heena Ibraham as the High Court was of the opinion that the rape was
committed at the building (Rail Yatri Niwas) belonging to the Railways and was perpetrated by
the Railway employees.

APPEAL TO THE HON’BLE SUPREME COURT

Being aggrieved by the said judgment of the High Court that had awarded a sum of Rs.10 lacs as
compensation for Smt. Heena Ibraham , The Chairman, Railway Board filed an appeal before the
Hon’ble Supreme Court on the ground that Railways would not be liable to pay compensation to
Smt. Heena Ibraham who was a foreigner and was not an Indian national. It is also contended
that commission of the offence by the person concerned would not make the Railway or the
Union of India liable to pay compensation to the victim of the offence. It is contended that since
it was the individual act of those persons, they alone would be prosecuted and on being found
guilty would be punished and may also be liable to pay fine or compensation, but having regard
to the facts of this case, the Railways, or, for that matter, the Union of India would not even be
vicariously liable. It is also contended that for claiming damages for the offence perpetrated on
Smt. Heena Ibraham , the remedy lay in the domain of Private Law and not under Public Law
and, therefore, no compensation could have been legally awarded by the High Court in a
proceeding under Article 226 of the Constitution and, that too, at the instance of a practicing
advocate who, in no way, was concerned or connected with the victim.

STATEMENT OF ISSUES

1. Whether Heena Ibraham who is a foreigner and not an Indian citizen is entitled to any
relief/ compensation under constitution of India?
2. Whether the commission of an offence like rape by the person concerned, would make the
railway or the Union of India liable to pay compensation to the victim of the offence on
the ground of vicarious liability?
3. Whether the accused Sunil Sharma (Age-16 yr. Boy) can be treated as an adult for the
offence of Gang Rape?

Gaurav Singh Ghurayya Roll NO. 177041, Section – A First Year

 6

SUMMARY OF ARGUMENT

1. Whether Heena Ibraham who is a foreigner and not an Indian citizen is entitled to
any relief/ compensation under constitution of India?

It is humbly submitted before this Hon’ble Court that the Heena Ibraham , who was not the
citizen of this country but came here as a citizen of Bangladesh was, nevertheless, entitled to all
the constitutional rights available to a citizen so far as "Right to Life" was concerned. She was
entitled to be treated with dignity and was also entitled to the protection of her person as
guaranteed under Article 21 of the Constitution. As a national of another country, she could not
be subjected to a treatment which was below dignity nor could she be subjected to physical
violence at the hands of Govt. employees who outraged her modesty. The Right available to her
under Article 21 was thus violated. Consequently, the State was under the Constitutional liability
to pay compensation to her.

2. Whether the commission of an offence like rape by the person concerned, would make
the railway or the Union of India liable to pay compensation to the victim of the
offence on the ground of vicarious liability?

It is humbly submitted before this Hon’ble Court that Running of Railways is a commercial
activity. Establishing Yatri Niwas at various Railway Stations to provide lodging and boarding
facilities to passengers on payment of charges is a part of the commercial activity of the Union of
India and this activity cannot be equated with the exercise of Sovereign power. The employees of
the Union of India who are deputed to run the Railways and to manage the establishment,
including the Railway Stations and Yatri Niwas, are essential components of the Govt.
machinery which carries on the commercial activity. If any of such employees commits an act of
tort, the Union Govt., of which they are the employees, can, be held vicariously liable in
damages to the person wronged by those employees.

3. Whether the accused Sunil Sharma (Age-16 yr. Boy) can be treated as an adult for
the offence of Gang Rape?

It is humbly submitted before this Hon’ble Court that juvenile in conflict with law named as
Sunil Sharma (Age- 16 yr.) can be treated as an adult for the offence of gang rape for as per the
provisions of the Code of Criminal Procedure, 1973 according to the JUVENILE JUSTICE
(CARE AND PROTECTION OF CHILDREN) BILL, 2015 and we request an order transfer of
the trial of the case to the Children’s Court having jurisdiction to try such offences from juvenile
justice board.

Gaurav Singh Ghurayya Roll NO. 177041, Section – A First Year

 7

ARGUMENTS ADVANCED

1. Whether Heena Ibraham who is a foreigner and not an Indian citizen is entitled to
any relief/ compensation under constitution of India?

It is most humbly submitted before this Hon’ble Court that the Mrs. Heena Ibrahim though is not
a citizen of india but of Bangladesh she is entitled to the relief/ Compensation under constitution
of India Under article 14 and 21 which are extended to “persons” and not just “citizens of
India”. The contention laid by appellant in his appeal lacks mainly on the context that it does not
realise that the words person and citizen both are used in Fundamental Rights as part of
Constitution of India and hence, with this few Fundamental rights are also available to the non-
citizens which assures them a safe environment when visiting India.

I. Article 14 of constitution : - Article 14, guarantees equality before law or the equal
protection of laws within the territory of India, is applicable to "person" which would
also include the "citizen" of the country and "non- citizen" both. In the case of Indra
Sawhney etc vs union of India and others air 1993 SC 477, 1992 supp 2 SCR 454,
Hon’able court has remarked that “the right to equality is also recognized as one of
basic features of Indian constitution. Article 14 applies to all person and is not limited
to citizens. A corporation, which is a juristic person, is also entailed to the benefit of
this article. This concept implied equality for equals and aims at striking down hostile
discrimination or oppression of inequality.”
Thus, This judgement clarifies all the doubts that person mentioned in the Article 14 is not limited
to the term citizens but includes others as well even a commercial entity such as corporation and
its main aim is in striking down hostile discrimination or oppression of inequality as suggest by
the appeal of my learned friend on the other side of the argument. Hence, we can draw a conclusion
that Mrs. Heena Ibraham is as much qualified to the equal treatment from Law as the Railway
board and her status ad citizen of Bangladesh is not a bar to it.

II. Article 21 of constitution:- Article 21 (Protection Of Life And Personal Liberty) says
“No person shall be deprived of his life or personal liberty except according to
procedure established by law.” In The Chairman, Railway Board & Ors vs Mrs.
Chandrima Das & Ors, 2000 it has been held by the Hon'ble Supreme Court that “The
meaning of the word "life" cannot be narrowed down. According to the tenor of the
language used in Article 21, it will be available not only to every citizen of this
country, but also to a "person" who may not be a citizen of the country.” Thus this
proves the validity of statement that Mrs. Heena Ibrahim though is not a citizen of
India but of Bangladesh she is entitled to the relief/ Compensation under constitution
of India. Also in Anwar vs. State of J & K, AIR 1971 SC 337 = 1971 (1) SCR 637 =
(1971) 3 SCC 104, it was held that “the rights under Articles 20, 21 and 22 are
available not only to "citizens" but also to "persons" which would include "non-
citizens".
In the landmark judgement in the case of Bandhua Mukti Morcha vs. U.O.I., AIR
1984 SC 802 = 1984 (2) SCR 67 = (1984) 3 SCC Hon'ble Supreme Court that It is the

Gaurav Singh Ghurayya Roll NO. 177041, Section – A First Year

 8

fundamental right of every one in this country, to live with human dignity, free from
exploitation. Further Hon’able Supreme Court in Bodhisatwa vs. Ms. Subdhra
Chakroborty (1996) 1 SCC 490 has held "rape" as an offence which is violative of the
Fundamental Right of a person guaranteed under Article 21 of the
Constitution. The Court observed as under:
"Rape is a crime not only against the person of a woman, it is a crime against the entire society.
It destroys the entire psychology of a woman and pushes her into deep emotional crisis. Rape is
therefore the most hated crime. It is a crime against basic human rights and is violative of the
victims most cherished right, namely, right to life which includes right to live with human dignity
contained in Article 21.”
Hence, through above discussed judgements Hon’able Supreme Court has already set a
precedence where non citizens will also have fundamental right to life and rape will amount to its
violation, entitling Mrs. Heena Ibraham compensation under Constitution of India.

2. Whether the commission of an offence like rape by the person concerned, would make
the railway or the Union of India liable to pay compensation to the victim of the
offence on the ground of vicarious liability?

It is most humbly submitted before this Hon’ble Court that vicarious liability refers to a situation
where someone is held responsible for the actions or omissions of another person. The liability of
the government in tort is governed by the principles of public law inherited from British Common
law and the provisions of the Constitution. The whole idea of Vicariously Liability of the State for
the torts committed by its servants is based on three principles:

 Respondeat superior (let the principal be liable).

 Quifacit per alium facit per se (he who acts through another does it himself).
 Socialisation of Compensation.

Unlike Crown Proceedings Act, 1947(England), we do not have any statutory provisions
mentioning the liability of the State in India. Hence, the precedent for the vicarious liability of
the state has been set through various decisions of the hon’able courts.
In State of Rajasthan vs. Mst. Vidhyawati AIR 1962 SC 933, it was held that the Govt. will be
vicariously liable for the tortious act of its employees. This was a case where a claim for
damages was
made by the heirs of a person who died in an accident caused by the negligence of the driver of a
Govt. vehicle. Reference may also be made to the decisions of this Court in State of Gujarat vs.
Memon Mahomed Haji Hasan AIR 1967 SC 1885 and Smt. Basava Kom Dyamogouda Patil vs.
State of Mysore AIR 1977 SC 1749.
It may be pointed out that functions of the Govt. in a welfare State are manifold, all of which
cannot be said to be the activities relating to exercise of Sovereign powers. The functions of the
State not only relate to the defense of the country or the administration of justice, but they extend
to many other spheres as, for example, education, commercial, social, economic, political and
even marital. These activities cannot be said to be related to Sovereign power.

Gaurav Singh Ghurayya Roll NO. 177041, Section – A First Year

 9

Running of Railways is a commercial activity. Establishing Yatri Niwas at various Railway

Stations to provide lodging and boarding facilities to passengers on payment of charges is a part
of the commercial activity of the Union of India and this activity cannot be equated with the
exercise of Sovereign power. The employees of the Union of India who are deputed to run the
Railways and to manage the establishment, including the Railway Stations and Yatri Niwas, are
essential components of the Govt. machinery which carries on the commercial activity. If any of
such employees commits an act of tort, the Union Govt., of which they are the employees, can,
subject tom other legal requirements being satisfied, be held vicariously liable in damages to the
person wronged by those employees. Thus, in the light of the above mentioned argument and
decisions of the Hon’able Supreme Court we may conclude that the commission of an offence
like rape by the person concerned does make the railway or the Union of India liable to pay
compensation to the victim of the offence on the ground of vicarious liability.

Whether the accused Sunil Sharma (Age-16 yr. Boy) can be treated as an adult for the
offence of Gang Rape?

It is most humbly submitted before this Hon’ble Court that THE JUVENILE JUSTICE (CARE
AND PROTECTION OF CHILDREN) BILL, 2015 under section 15 says,
15. (1) In case of a heinous offence alleged to have been committed by a child, who has
completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment
with regard to his mental and physical capacity to commit such offence, ability to understand the
consequences of the offence and the circumstances in which he allegedly committed the offence,
and may pass an order in accordance with the provisions of subsection
(3) of section 18:

Provided that for such an assessment, the Board may take the assistance of experienced
psychologists or psycho-social workers or other experts.

Explanation.—For the purposes of this section, it is clarified that preliminary assessment is not a
trial, but is to assess the capacity of such child to commit and understand the consequences of the
alleged offence.

Further same Act in its section 18 (3) also says

Where the Board after preliminary assessment under section 15 pass an order that there is a need
for trial of the said child as an adult, then the Board may order transfer of the trial of the case to
the Children’s Court having jurisdiction to try such offences.

Prior to the commencing of the Act in the landmark case of State through Reference vs Ram Singh
& Ors. on 13 March, 2014, Delhi High Court had also referred the case of one convict who was
17 year old at the time of commencement of the crime was as per law tried by juvenile justice
board and not the high court. However, this at that time there was no such provision of trial by
children court which came later through amended act of Juvenile Justice mentioned above. In light
of the above produced section it is submitted that a board of enquiry may be constituted under
THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) BILL, 2015 which

Gaurav Singh Ghurayya Roll NO. 177041, Section – A First Year

 10

may check the suitability of the Juvenile in conflict with law hereby mentioned as Sunil Sharma
to be tried as adult or not.

Gaurav Singh Ghurayya Roll NO. 177041, Section – A First Year

 11

PRAYER

Wherefore in the light of the facts stated, issues raised, authorities cited and arguments advanced,
it is most humbly prayed before this Hon’ble Court that it may be pleased to:-
1. The appeal having no merit may be dismissed with the observation that the amount of
compensation shall be made over to the High Commissioner for Bangladesh in India for
payment to the victim, Smt. Heena Ibraham .
2. The payment to the High Commissioner shall be made within three months to lessen the
ordeal she is facing for past few months.
3. A board of inquiry may be constituted at earliest to try the case of Sunil Sharma (Age- 16
yr.)under JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) BILL,
2015 for his treatment as an adult for the offence of gang rape for as per the provisions of
the Code of Criminal Procedure, and further it is requested an order transfer of the trial of
the case to the Children’s Court having jurisdiction to try such offences from juvenile
justice board may be made as per the recommendation of the board of inquiry.

AND
Pass any other order that it may deem fit in the interest of Justice, Equity and Good
Conscience.

And for this, the appellant as in duty bound shall humbly pray.

(Counsel for the Chanda Bose & ORS.)

Gaurav Singh Ghurayya Roll NO. 177041, Section – A First Year