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Team Code – P-19

CHANAKYA NATIONAL LAW UNIVERSITY MOOT COURT COMPETITION


2018

IN THE HONOURABLE SUPREME COURT OF INDIA

Criminal Petition Jurisdiction

Petition No. ****/2018,

Petition Filed Under Article 32 and 131 Of The Constitution Of India

IN THE MATTERS OF

LT. CL. HOSHIYAR SINGH & ANR…………………………...APPELLANT

v.

STATE OF DRAS & ANR.………………………………..…….RESPONDENT

Upon Submission To The Honorable Chief Justice & His Companion Justices Of The
Supreme Court Of India

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ..................................................................................................vii


STATEMENT OF JURISDICTION......................................................................................... ix
STATEMENT OF FACTS ........................................................................................................ x
ISSUES RAISED .....................................................................................................................xii
SUMMARY OF ARGUMENTS ........................................................................................... xiii
ARGUMENTS ADVANCED ................................................................................................... 1
1. THE WRIT PETITION BROUGHT BEFORE THE HO’BLE SUPREME COURT
OF BHARAT IS MAINTAINABLE. .................................................................................... 1
2. THE FIR FILED AGAINST THE COMMANDANT AND THE JCO IS FIT TO
BE QUASHED....................................................................................................................... 2
2.1. THE POLICE AUTHORITIES HAVE MADE ARBITRARY EXERCISE OF
POWER .............................................................................................................................. 3
2.2. APPLICATION OF SPECIAL PROVISION OVER THE CODE OF CRIMINAL
PROCEDURE .................................................................................................................... 4
2.3. SANCTION BY THE CENTRAL GOVT. WAS MANDATORY. ....................... 6
3. SPECIAL POWERS TO ARMED FORCES ACT , 2016 IS
CONSTITUTIONALLY VALID .......................................................................................... 7
3.1. PROVISIONS OF SPECIAL POWERS TO ARMED FORCES ACT , 2016 ARE
IN ADHERENCE TO CONSTITUTION OF BHARAT................................................... 7
3.2. IMMEDIATE WITHDRAWL OF TROOPS FROM DRAS WILL PUT
SECURITY AND SAFETY OF THE STATE IN DANGER ............................................ 8
3.2.1. THE AREA CONCERNED IS A DISTURBED AREA ..................................... 8
3.2.2. AZAAD TRIBE POSES GRAVE THREAT TO THE STATE OF DRAS. ....... 8
3.3. THERE IS NO HUMAN RIGHTS VIOLATION DONE BY THE ARMED
FORCES. ............................................................................................................................ 9
4. WHETHER THE FAMILY OF THE VICTIM, KILLED IN THE FIRING
CONDUCTED BY THE ARMY, SHOULD BE GRANTED MONETARY
COMPENSATION............................................................................................................... 11
4.1. DOCTRINE OF SOVEREIGN IMMUNITY ....................................................... 11
4.1.1. PERFORMANCE OF MILITARY DUTY ....................................................... 11

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4.2. RIGHT OF PRIVATE DEFENCE ........................................................................ 12


4.2.1. RIGHT OF PRIVATE DEFENCE OF THE BODY EXTENDS TO CAUSING
DEATH .......................................................................................................................... 12
PRAYER .................................................................................................................................. 14

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CASES

1. Bhim Sen vs. State of U.P. , AIR 195 SC 435. 16


2. Bodhisatwa Gautam v. Subhra Chakroborty, AIR 1996 SC 922 ;(1996) 1 SCC 490 ; 14
3. Rual Shah v. State of Bihar, AIR 1983 SC 1086 : (1983) 4 SCC 141 14
4. Peoples’ Union for democratic rights v. Police Commissioner, (1989) 4 SCc 730 ; 14
5. A.K. Gopalan v. State of Madras AIR 1950 SC 220 (1950) SCR 88 ; 14
6. Fertilizer Corpn. Kamgar Union v. Union of India , AIR 1981 SC 344: (1981) SCR 52 :
(1981) SCC 568 ; 14
7. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802: 3 Scc 161 ; 919840 2 SCR
67 ; 14
8. Mohd. Zahir Khan v. Union of India, 1993 (Supp – 2) SCC 12. 14
9. CBI SPE, Lucknow v. R. K. Srivastava (1989) 4 SCC 59 : (1990 All LJ 62) 18
10. General Officer Commanding v. CBI, (Criminal Appeal No.257 of 2011). 17
11. Harendra Kumar Deka v. state of Assam and Ors. (2008) GH 0252. 21
12. Harshwardhan Singh vs. Union of India and Ors. (21.07.2016 - AFT) O.A. No. 175 of
2014. 13
13. Kasturilal Laxmi Reddy v. state of J&K , AIR 1980, SC 1992 , para 14. 13
14. Kausha PN v. Union of India, AIR 1978 SC 1457, para 60-62, Arvinder Singh v. State of
Punjab, AIR 1979 SC 321, para 9 13
15. Lt Col Karamveer Singh vs. State Of Jammu And Kashmir and Ors 14
16. Major EG Barsay V. State of Bombay, AIR 1961 SC 1762 16
17. Naga Peoples’ Movement of Human Rights v. Union of India, AIR 1998 SC 431: (1998)
2 SCC 109. 18
18. Pathumma v. state of kerala , AIR 1979 SC 771, para 41. 13
19. Peninsular and oriental steam navigation co. v. secretary of state for India, (1861) 5 Bom.
H.C.R.. 22
20. People's Union for Civil Liberties v. Union of India (2004) 9 SCC 580. 20
21. Priya Prakash Varrier and Ors. vs. The State Of Telangana and Anr. (2018) SC 09588. 14
22. R. Balakrishna Pillai v. State of Kerala & Anr., AIR 1996 SC 901. 17
23. Sekar v. State of Rajasthan, 2003 SCC(cri.) 16. 23
24. Sishir Kumar Mitter vs. Corporation of Calcutta, 30 CWN 598;Vijaya Prakash v.
Hyderabad Municipal Corporation , AIR 1957 AP 469 ; 16

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25. Badrinarain v. State, AIR 1961 Raj 48 ; Nilratan Sircar v. Lakshmi Narayan Ram Nivas,
AIR 1965 SC 1. 16
26. South India Corporation (P) Ltd. V. Secretary. Board of Revenue, Trivandrum, AIR 1964
SC 207. 16
27. State of Haryana and Ors. v. Bhajan Lal and Ors. (1992) SC 0115, Vineet Kumar and
Ors. vs. State of U.P. and Ors. (2017) SC 0351. 14
28. State of Punjab & Anr. v. Mohammed labal Bhatti, (2009) 17 SCC. 18
29. Sukhdev Singh v. Bhagat Ram AIR 1975 SC 1331. 14
30. Union of India v. Harbans Singh, AIR 1959 P&H 39. 22
31. Ursola Municipality v. REV. Relekar AIR 1970 Bom. 333 (DB), 15
32. S.P. Thiruvengadasami Naidu vs Municipal Health Office , In re Guruviah Naidu & CO.
AIR 1954 Mad. 833(DB). 15
33. Vishvas Aba Kurane v. State of Maharashtra AIR 1978 SC 414: 1978 CrLJ 484. 23
34. Thangarajan v. Union of India, AIR 1975 Mad. 32 22

STATUES & ACTS


1. INDIA CONSTITUTION. , Art. 38. 15
2. INDIA CONSTITUTION. ,Art. 21 – Right to Life and personal liberty 13
3. The Armed Forces Special Power Act, 1990, Sec 4(a) 21
4. The Armed Forces Special Powers Act( Jammu & Kashmir), 1990 , Sec. 2(b). 19
5. The Armed Forces Special Powers Act( Jammu & Kashmir), 1990 , Sec. 3(b). 19
6. The Army Act 1950, Sec. 8(1). 17
7. The Indian Evidence Act ,1872, Sec. 78(2). 21
8. The Indian Penal Code , 1860 ,Sec. 96 23
9. The Indian Penal Code, 1860 , Sec. 97. 23
10. The Indian Penal Code, Sec. 96, sec. 100. 21
11. The Protection of Human Rights Act,1993, Sec. 38. 22
12. the Unlawful Activities Act, 1967, Sec. 2(k), Sec. 15. 20

BOOKS
CONSTITUTIONAL LAW OF INDIA, 4th Edn., Vol. II, p. 1879 ......................................... 21

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REPORTS & MISCELLANEOUS


1. First Law Commission Report, 1956 22
2. The Supreme Court Reportsk.C. ... vs The State Of Orissa on 29 May, 1953 Equivalent
citations: 1953 AIR 375, 1954 SCR 1 18

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LIST OF ABBREVIATIONS

ART. Article

AIR All India Reporter

ANR. Another

AFSPA Armed Forces Special Powers Act

AFT Armed Forces Tribunal

BOM. Bombay

CORP. Corporation

CO. Company

CR.P.C. Criminal Procedure Code

CR.L.J. Criminal Law Journal

CL. Colonel

CONST. Constitution

FIR First Information Report

GOVT. Government

HON’BLE Honourable

IPC Indian Penal Code

ID. Ibid

JCO Junior Commissioned Officer

JAN. January

J&K Jammu and Kashmir

Lt. Lieutenant

MAD Madras

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NHRC National Human Rights Commission

ORS. Others

PVT. Private

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

SEC. Section

UOI Union of India

V. Versus

VOL. Volume

¶ Paragraph

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Bharat has the jurisdiction in this matter under Art. 32 and
Art. 131 of the Constitution of Bharat which reads as follows:

Article 32. Remedies for enforcement of rights conferred by this Part:

1. The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed.
2. The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part.
3. Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ).
4. The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.
Article 131. Original jurisdiction of the Supreme Court Subject to the provisions of this
Constitution, the Supreme Court shall, to the exclusion of any other court, have original
jurisdiction in any dispute
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one side and one or more
other States on the other; or
(c) between two or more States, if and in so far as the dispute involves any question (whether
of law or fact) on which the existence or extent of a legal right depends: Provided that the
said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant,
engagements, and or other similar instrument which, having been entered into or executed
before the commencement of this Constitution, continues in operation after such
commencement, or which provides that the said jurisdiction shall not extend to such a
dispute.

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STATEMENT OF FACTS

I. STATE OF BHARAT

1. Bharat a democratic nation that attained independence in 1975. Three hostile nations
namely Dushanbe , Mingora and Kashgar formed an organisation ‘DuMika” in order
to show their solidarity against Bharat. In 90% cases intruders attempt to breach
Bharat’s border in areas adjoining the three hostile nations. In 2001 Bharatian Govt.
deployed three- fold security in those areas and in 2009 heavy disturbances were
witnessed in five of the adjoining states. In a bilateral negotiation between Dumika
and Bharat, former claimed a major portion of Bharatian state Dras which holds a
population of Azaad tribe that opposes Bharatian Government and supports hostile
nations.

II. IMPLEMENTATION OF SPECIAL POWERS TO ARMED FORCES ACT, 2016

2. On 1st April 2016 Bharatian Government passed the Special Powers to Armed Forces
Act and heavy military support was deployed in the areas adjoining the hostile nation.
Dras was declared as a disturbed area by the governor and marching orders by the
central government were issued to Army Regiment RajRif. Subsequently, terrorist
activities in Dras increased multifold. Army and para- military camps were attacked
resulting in heavy casualties. Also area adjoining the border witnessed intermittent
shelling cross border firing and destroying Bharatian army's post and killing
numerous civilians.

III. ACHIEVEMENTS OF ARMED FORCES

3. The Ministry of Defence in Annual Report praised the achievements of the army
contingents, RajRif being prominent. The army received intelligence report about
Azaad tribe giving shelter to border-intruders, who train young tribal's to attack
Bharatian Govt. The army head quarter issued a press release stating that the tribal's
were armed with deadly weapon, evidently supplied from across the border, the tribal
were asked to surrender and the army conducted only retaliatory shooting in which
they were killed.

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IV. MOB ATTACK ON ARMED FORCES

4. On 15th Jan. 2018, 25 Non- Commissioned Officers and 7 Junior Commissioned


Officers headed by Lt. Cl. Hoshiyar Singh were passing through the tribal area of
Azaad tribe and suddenly alarmed by a fire shot the commandant ordered them to halt
and investigate. The attackers pelted stones injuring commandant and 20 of his men
and later also threw petrol bombs on their vehicles. Commandant ordered to fire in air
but the convoy open fired.A JCO was attacked and the mob tried to snatch his AK 47,
inflicted upon him a knife blow and hit him on head by sticks, seeing which
commandant fired killing one of the attackers.

V. FILING OF THE FIR AGAINST COMMANDANT AND JCO

5. This incident grabbed the attention of opposition, media and NHRC. NHRC after
conducting a survey concluded that the Army in Dras made excess use of force.The
opposition and media demanded a suit on commandant and withdrawal of act and
armed forces .Hence , the government of state of Dras along with NHRC filed an FIR
against the commandant and the JCO under section 147, 307, 302, 323, 326, 341 and
120B.

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ISSUES RAISED

I.

WHETHER THE WRIT PETITION FILED BEFORE THE HON’BLE COURT IS


MAINTAINABLE.

II.
WHETEHR THE FIR AGAINST THE COMMANDANT AND JCO FIR TO BE
QUASHED.

III.
WHETHER THE SPECIAL POWERS TO ARMED FORCES ACT, 2016 IS FIT TO
BE QUASHED AND WITHDRAWN FROM THE STATE OF DRAS.

IV.
WHETHER THE FAMILY OF THE VICTIM, KILLED IN THE FIRING
CONDUCTED BY THE ARMY, SHOULD BE GRANTED MONETARY
COMPENSATION.

V.
THE INVESTIGATION MUST NOT BE HANDED OVER TO AN INDEPENDENT
AGENCY

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SUMMARY OF ARGUMENTS

1. THE WRIT PETITION FILED IN THE SUPREME COURT IS MAINTAINABLE.

The Writ petition filed in the Hon’ble Court under Article 32 is maintainable because Right
to dignity enshrined in Art. 21 has been violated of Commandant and mere discrimination or
inequality of treatment does not amount to discrimination within the ambit of Art. 14. In the
case army personnel is governed by the Army Act 1950 and not as per Cr.P.C like any
individual of Bharat.

2. FIR AGAINST THE COMMANDANT AND JCO IS FIT TO BE QUASHED

It is humbly submitted by the petitioner to the Hon’ble court that the writ petition brought
before the Hon’ble Supreme court under Article 32 of the Indian Constitution for the
quashing of FIR and the whole criminal prosecution against himself is maintainable as in the
instant case there is a breach of his valuable fundamental rights enshrined under Article 14 &
21 of the Indian Constitution.

The FIR in the case in hand is fit to be quashed on the grounds that : (1) FIR being filed by
the said police authorities in this case is an arbitrary exercise of power , (2) According to
Section 1 of Cr.P.C. since the Army Act is a special law, it is the Code which is subject to the
provisions of the Army Act , (3) the sanction of the Central Government is required in the
facts and circumstances of the case.

3. SPECIAL POWERS TO ARMED FORCES ACT, 2016 IS CONSTITUTIONAL.

The Act is valid and the centre is the competent authority to pass the Act, The powers
conferred under clauses (a) to (d) are not unreasonable and arbitrary and are not violative of
Part III of the Constitution. Article 355 imparts duty on the union to safeguard the states
against internal and external disturbances. The state is under highest threat from DuMiKa.
The immediate withdrawal of troops from the disturbed area will put security and safety of
the state danger. As reports confirmed that the Azaad tribe is preparing an attack against the
Bhartian army.

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4. THE INVESTIGATION OF THE INCIDENT MUST BE HANDED OVER TO AN


INDEPENDENT AUTHORITY.

The Investigation of the incident must not be done by the an independent authority because
further investigation will bring defamation to the army and in arguendo the offences done in
the line of active duty should be investigated and the case should be adjudged in the court
martial.

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ARGUMENTS ADVANCED

1. THE WRIT PETITION BROUGHT BEFsORE THE HO’BLE SUPREME COURT


OF BHARAT IS MAINTAINABLE.

1. The writ petition filed by the Petitioner before the hon’ble Supreme Court under Art. 32
of the Indian Constitution , 1950 for the quashing of the FIR filed against him and the
JCO is maintainable as there has been infringement of fundamental rights of the petitioner
under Art. 141 and Art. 212 enumerated in Part III of the constitution of India.
2. In the present case there has been an infringement of right to dignity3 of the commandant
and the JCO. It is respectfully submitted that different and diverse versions of the
incident, as published in various newspapers/magazines, show the volatility of the
situation andwill also have a numbing effect on the morale of the extremely courageous
and professional Armed Forces of the Nation, having the potential of jeopardizing the
security, sovereignty and integrity of India.The present Writ Petition is filed by a
decorated Army Officer, , for protecting the morale of the soldiers of Indian Army, who
are facing all odds in performance of their bonafide duties and laying their lives in the
line of duty, to uphold the dignity of the Indian Flag.Having served for so long, framing
of such charges against him is extremely painful to him personally, as a serving soldier.
3. Further there has also been been an infringement of right to equality of the commandant
and the JCO. Mere discrimination or inequality of treatment does not amount to
discrimination within the ambit of Art. 14. 4 For an order of an executive to be not
violative of fundamental rights, it must not be an arbitrary act of the state 5,and fulfil the
conditions: (a) intelligible differentia which distinguishes between persons or things
grouped together from others left out of the group.6. This can be done by examining the

1
INDIA CONST. , Art. 14 – Equality before law.

2
INDIA CONST. ,Art. 21 – Right to Life and personal liberty.

3
Harshwardhan Singh vs. Union of India and Ors. (21.07.2016 - AFT) O.A. No. 175 of 2014.

4
D.D. Basu, Shorter Constitution of India, 13 th ed. , 2001, vol. 1 , ¶ 62.

5
Kasturilal Laxmi Reddy v. state of J&K , AIR 1980, SC 1992 , ¶ 14.

6
Pathumma v. state of kerala , AIR 1979 SC 771, ¶41.

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purpose and policy of the Act, which can be ascertained from an examination of the title
and preamble7 and provisions (b) rational nexus that connects the object to be achieved by
the act with the intelligible differentia ascertained. In this case the army personnel is to
be governed by the Army Act 1950 and not as per Cr.P.c like any other individual of
Bharat.
4. Further, it was held by hon’ble Supreme court that a PIL can be filed against the state for
the violation of fundamental rights under Art. 32 of the Indian Constitution.8
5. The Petitioner is constrained to file the present Writ Petition for quashing of the FIR,
directly before this Hon’ble Court in view of the extremely hostile situation on the
ground.910The Hon’ble court in the present case has taken cognizance of the matter and
proceeded suo moto11 and added various crucial issues of law to be adjudged upon by this
court.

2. THE FIR FILED AGAINST THE COMMANDANT AND THE JCO IS FIT TO BE
QUASHED.
6. It is humbly submitted by the petitioner that the writ petition brought before the Hon’ble
Supreme court under Article 32 of the Indian Constitution for the quashing of FIR and the
whole criminal prosecution against himself is maintainable as in the instant case there is a
breach of his valuable fundamental rights enshrined under Article 14 & 21 of the Indian
Constitution.
7. There are certain guidelines given by the Ho’nble Supreme court on the basis of which it
can be concluded that the FIR is fit to be quashed.12Since there is an express legal bar

7
Kausha PN v. Union of India, AIR 1978 SC 1457, ¶60-62, Arvinder Singh v. State of Punjab, AIR 1979 SC
321, ¶ 9.

8
Sukhdev Singh v. Bhagat Ram AIR 1975 SC 1331.

9
Lt Col Karamveer Singh vs. State Of Jammu And Kashmir and Ors. (2018) SC 08536.

10
Priya Prakash Varrier and Ors. vs. The State Of Telangana and Anr. (2018) SC 09588.

11
Bodhisatwa Gautam v. Subhra Chakroborty, AIR 1996 SC 922 ;(1996) 1 SCC 490 ; Rual Shah v. State of
Bihar, AIR 1983 SC 1086 : (1983) 4 SCC 141 ; Peoples’ Union for democratic rights v. Police Commissioner,
(1989) 4 SCc 730 ; A.K. Gopalan v. State of Madras AIR 1950 SC 220 (1950) SCR 88 ; Fertilizer Corpn.
Kamgar Union v. Union of India , AIR 1981 SC 344: (1981) SCR 52 : (1981) SCC 568 ; Bandhua Mukti
Morcha v. Union of India, AIR 1984 SC 802: 3 Scc 161 ; 919840 2 SCR 67 ; Mohd. Zahir Khan v. Union of
India, 1993 (Supp – 2) SCC 12.

12
State of Haryana and Ors. v. Bhajan Lal and Ors. (1992) SC 0115, Vineet Kumar and Ors. vs. State of U.P.
and Ors. (2017) SC 0351.

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under Cr.P.C Sec. 513 and Sec 7 of The AFSPA, 1990 to the institution and continuance
of such proceedings , FIR can be quashed on the following grounds: (1) FIR being filed
by the said police authorities in this case is an arbitrary exercise of power , (2) According
to Section 5 of Cr.P.C. since the Army Act is a special law, it is the Code which is subject
to the provisions of the Army Act , (3) Sanction of the Central govt. was mandatory14.

2.1. THE POLICE AUTHORITIES HAVE MADE ARBITRARY EXERCISE OF


POWER

8. Further to this incident, an FIR being filed by the said police authorities is an arbitrary
exercise of power knowing fully well that the personnel so acting were doing lawful
military duty peacefully and who, by violent actions of the mob, were forced to take
lawful actions for protection of Govt. property without any excessive use of force.
9. It is most humbly submitted that preamble of Indian constitution has, without any
discrimination, confirmed the security of living creature as very basic requirement of
society. It is the obligation of the State to ensure the basic security to its citizen and non-
citizen living in territory of State.15
10. In the present matter, since involved personnel were moving from one place to another
place under the authority of government or by the order of govt., they will be said to be
performing the bonafide duty on behalf of the government and the said move can be
categorised as a small action of the official discharge of their duty. It cannot be said that
while in the line of march or in the process of joining, they were not under the obligation
of duty and thus, any action to complete his voyage or journey be said to be well within
the ambit of bonafide duty of individual.
11. The Courts have held that all offences, whether under the Penal Code or under any other
law, have to be invariably, inquired into, tried and dealt with according to the provisions
of the Criminal Procedure Code. This rule is subject to the qualification that in respect of
offences under other laws, that is say, under laws other than the Penal Code, it there be an
enactment regulating the manner or place of investigation, inquiring into, trying or

13
Criminal Procedural Code, 1973
14
The Armed Forces Special Powers Act 1990, Sec 7

15
INDIA CONST. , Art. 38.

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otherwise dealing with such offences, such a special enactment will prevail over the code
of criminal procedure, unless there is a specific provision to the contrary.16
12. In this respect, it is respectfully mentioned that police authority has shown extremely
biasness while registering the FIR against the person specific and absolutely ignored the
requirement of carrying out prior investigation into the case .Additionally, no action
against all those persons who were forming the part of unruly mob was taken by the
authority and thus, conducted on spot adjudication of matter without taking any
cognisance against the action of mob. Hence this petition against the biased approach and
irresponsible action of police authority towards military forces in investigation of the
complaint.

2.2. APPLICATION OF SPECIAL PROVISION OVER THE CODE OF CRIMINAL


PROCEDURE

13. Sec. 1 of the CrPC, makes the provision of the Code, subject to the provisions of any
special law and since the Army Act is a special law, it is the Code which is subject to the
provisions of the Army Act. Whatever it may be, once inconsistency is spelt out, the
provisions of the Special Law shall prevail as has been held by this Hon'ble Court.17 As
decided by this Hon’ble Court that the provisions of the Army Act apply to offences
committed by Army personnel described in Section 2 of the Act. 18 The effect of Section 5
of CrPC is to render the provisions of CrPC inapplicable in respect of all matters covered
by such special law.
14. The jurisdiction given to ordinary criminal courts under Sec. 4(1) is excluded only when a
Special Act applies and the jurisdiction of regular courts to try particular cases under IPC
is specifically excluded under that Act by vesting such jurisdiction exclusively in Special

16
Ursola Municipality v. REV. Relekar AIR 1970 Bom. 333 (DB), S.P. Thiruvengadasami Naidu vs Municipal
Health Office , In re Guruviah Naidu & CO. AIR 1954 Mad. 833(DB).

17
South India Corporation (P) Ltd. V. Secretary. Board of Revenue, Trivandrum, AIR 1964 SC 207.

18
Major EG Barsay V. State of Bombay, AIR 1961 SC 1762.

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Tribunals established under the Act.19 In absence of any Special procedure provided by
the special Act, the procedure of code is to be followed.20
15. Further Sec. 70 Army Act, 1950 states : “Civil offence not triable by court-martial: A
person subject to this Act who commits an offence of murder against a person not subject
to military, naval or air force law, or of culpable homicide not amounting to murder
against such a person or of rape in relation to such a person, shall not be deemed to be
guilty of an offence against this Act and shall not be tried by a court-martial, unless he
commits any of the said offences
(a) while on active service, or
(b) at any place outside India, or
(c) at a frontier post specified by the Central Government by notification in this
behalf."
16. In the instant case, the army personnel concerned was accused for an offence triable
under the Army Act that is committing culpable homicide amounting to murder of a
person not subject to military, naval or air force law while on active service 21. Therefore,
the offence that is alleged to have been committed is not a civil offence but is clearly, an
offence triable under the Army Act. It is, therefore, very alarming and incomprehensible
as to how the name of Petitioner or for that matter the name of any serving personnel can
be so expressly cited in First Information Report recording an incident in which the Army
as an instrument of the Central Government was lawfully conducting itself.
17. In other words, it is contended that person becomes partially liable from the date of
commission of offence and then criminal proceedings such as filing of FIR under Section
154 and investigation takes place subsequently under Chapter-XIV under Cr. P.C. Svt,
1989 and Chapter-XII under Cr. P.C., 1973. Thus, it is to be considered that criminal
proceeding is said to begin from the time when an information about commission of
offence is received by proper authority and accordingly, pre-requisite of making the case
for titling as other legal proceeding is fulfilled.

19
Bhim Sen vs. State of U.P. , AIR 195 SC 435.

20
Sishir Kumar Mitter vs. Corporation of Calcutta, 30 CWN 598;Vijaya Prakash v. Hyderabad Municipal
Corporation , AIR 1957 AP 469 ; Badrinarain v. State, AIR 1961 Raj 48 ; Nilratan Sircar v. Lakshmi Narayan
Ram Nivas, AIR 1965 SC 1.

21
The Army Act 1950, Sec. 8(1).

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18. The provisions of the Cr.P.C. are not applicable to proceedings under these special acts.22

2.3. SANCTION BY THE CENTRAL GOVT. WAS MANDATORY.

19. This Hon’ble Court held that the question of sanction is of paramount importance for
protecting a public servant who has acted in good faith while performing his duty. In
order that the public servant may not be unnecessarily harassed on a complaint of an
unscrupulous person, it is obligatory on the part of the executive authority to protect him.
However, there must be a discernible connection between the act complained of and the
powers and duties of the public servant.23
20. In the instant case, the Army personnel involved were performing a bonafide military
duty which amounts to active service.
21. In this regards, wording of apex court has to be considered which while defined the word
official duty, said that expression “official duty” implies that the act or omission must
have been done by the public servant in the course of his service and that it should have
been done in discharge of his duty.24
22. Thus, the civil authorities if they are desirous of prosecuting the said individual, would
require the sanction of the Central Government and such sanction was ruled to be
required in the following circumstance, “In fact, the issue of sanction becomes a question
of paramount importance when a public servant is alleged to have acted beyond his
authority or his acts complained of are in dereliction of the duty. In such an eventuality, if
the is alleged to have been committed by him while acting or purporting to act in
discharge of his official duty, grant of prior sanction becomes imperative.” 25
23. The Apex Court observed in a case that the High Court had rightly held that as the
criminal proceedings have been started against the respondent on the basis of an F.I.R.
which does not contain any definite accusation, it amounted to an abuse of process of the
Court and, as such, was liable to be quashed and the Apex Court upheld the Judgment of
the High Court and quashed the entire criminal proceedings aforesaid.26

22
Ram Sarup v. UOI, AIR 1965 SC 2247 (25l): (1964) 5 SCR 931.

23
General Officer Commanding v. CBI, (Criminal Appeal No.257 of 2011).

24
R. Balakrishna Pillai v. State of Kerala & Anr., AIR 1996 SC 901.

25
State of Punjab & Anr. v. Mohammed labal Bhatti, (2009) 17 SCC.

26
CBI SPE, Lucknow v. R. K. Srivastava (1989) 4 SCC 59 : (1990 All LJ 62).

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3. SPECIAL POWERS TO ARMED FORCES ACT , 2016 IS CONSTITUTIONALLY


VALID

3.1. PROVISIONS OF SPECIAL POWERS TO ARMED FORCES ACT , 2016 ARE


IN ADHERENCE TO CONSTITUTION OF BHARAT

24. The central act is been held as valid, parliament was competent to enact the central act in
exercise of statutory power conferred under entries 1 and 2 of list I read Article 246 of the
Constitution27. If the legislature is competent to pass a particular law, the motives which
impelled it to act are really irrelevant. On the other hand, if the legislature lacks
competency, the question of motive does not arise at all. Whether a statute is
constitutional or not it thus always a question of power.28Thus the Special Powers to the
Armed Forces Act is Constitutional on the basis of competency of the union to enact it. It
was observed that that seeking “aid” by civil authorities does not confer independent
power on the armed forces for maintenance of public order and armed forces do not take
over the civil administration, but are merely co-operating with civil authorities.29
25. The Powers conferred under clauses (a) to (d) of Section 4 and Section 5 of the Central
Act on the officers of the armed forces, including on Commissioned Officer are not
arbitrary and unreasonable and are not violative of the provisions of Articles 14, 19 or 21
of the Constitution.30 Because the declaration of the concerned area as disturbed area, the
importance of due warning, necessity of action in order to maintain public order against
the person/persons acting in contravention of such prohibitory order is quintessential to
the Act and it indicates the minimum use of force is required by the army personnel for
the effective actions against those in contravention with law.
26. Whether a situation has arisen which requires the making of a declaration under Sec. 3 so
as to enable the armed forces of the Union to be deployed in aid of the Civil power is a
matter which has to be considered by the Governor of the State/Administrator of the
Union Territory as well as Central Government because the cooperation of both is
required for handling the situation. By virtue of Article 355 the Union owes a duty to

27
Naga Peoples’ Movement of Human Rights v. Union of India, AIR 1998 SC 431: (1998) 2 SCC 109.

28
The Supreme Court Reportsk.C. ... vs The State Of Orissa on 29 May, 1953 Equivalent citations: 1953 AIR
375, 1954 SCR 1.

29
Naga Peoples’ Movement of Human Rights v. Union of India, AIR 1998 SC 431: (1998) 2 SCC 109.

30
Supra, note 26.

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protect the States against internal disturbance and since the deployment of armed forces
in aid of civil power in a State is to be made by the Central Government in discharge of
the said constitutional obligation, the conferment of the power to issue a declaration on
the Central Government cannot be held to be violative of the federal scheme as envisaged
by the Constitution.31 There is no need to seek any Constitutional or legislative sanction,
justification for invoking martial law. The need to preserve the state is its sanction,
justification and legitimacy32

3.2. IMMEDIATE WITHDRAWL OF TROOPS FROM DRAS WILL PUT


SECURITY AND SAFETY OF THE STATE IN DANGER

3.2.1. THE AREA CONCERNED IS A DISTURBED AREA

27. The governor of Dras declared Dras as a “disturbed area”33. In the circumstances when
the activities directed towards disrupting the sovereignty and territorial integrity or
bringing about a cessation of a part of the territory of India, the governor has the power to
declare the state as a disturbed area.34 The state of Dras was under the highest threat from
DuMiKa35. The territorial integrity of the state of Dras was heavily compromised and
incidents of cross-border intruders and cross-border firing were common.3637

3.2.2. AZAAD TRIBE POSES GRAVE THREAT TO THE STATE OF DRAS.

28. The intelligence report confirmed the involvement of Azaad tribe in preparing to launch
an armed attack against the Bharatian Army. 38 On 15th January , 2018 Azaad tribe

31
Ibid.

32
CONSTITUTIONAL LAW OF INDIA, 4th Edn., Vol. II, p. 1879.

33
The Armed Forces Special Powers Act( Jammu & Kashmir), 1990 , Sec. 2(b).

34
The Armed Forces Special Powers Act( Jammu & Kashmir), 1990 , Sec. 3(b).

35
Moot problem ¶ 3.

36
Moot problem ¶ 6.

37
Moot problem ¶ 3.

38
Moot problem ¶ 8.

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conducted a planned attack on an army convoy that was passing through the area which
caused injury to the army officials including severe injuries to the JCO.39

3.3. THERE IS NO HUMAN RIGHTS VIOLATION DONE BY THE ARMED


FORCES.

29. In a decision, this Court described terrorism as an "undeclared war" as well as a "proxy
war". Adverting to the reality of terrorism, this Court observed that terrorist acts are
meant, in several ways, to destabilize the nation and, amongst others, demoralize the
security forces.”40
30. Here, it is very humbly submitted to this Hon'ble Court that the provision has laid down
the circumstances in the presence of which appropriate authority declares the whole or
part of the state to be disturbed area. It is also observed from the language that the
provision has not provided any specific kind of act to be terrorist act against which the
said power can be exercised. In the absence of such definition, one can resort upon the
definition of "Terrorist act"41 as provided under the Unlawful Activities (Prevention) Act,
1967.
31. Reading the language of said provision along with provisions of Armed Forces (Jammu
and Kashmir) Special Powers Act 1990 gives absolute idea of what amounts to terrorist
act and thus, validates the action taken by Armed forces under the Section 04 of the
Special Powers to the Armed forces Act, 2016.
32. Here expression “against any person who is acting in contravention of any law or order
for the time being in force" is required to be examined considering the facts of present
case.
33. These heinous acts were targeted to the functionaries of the Central Government
performing lawful orders conferred upon them by law by the Central Government.It may
please be recollected that such unruly behaviour has earlier obstructed the bonafide govt.
duties . One such example is the attack on the important army and para-military camps
which resulted in heavy casualities. Also the intermittent shelling and cross- border firing
destroying Bharatian army’s posts were witnessed.42

39
Moot problem ¶ 12.

40
People's Union for Civil Liberties v. Union of India (2004) 9 SCC 580.

41
the Unlawful Activities Act, 1967, Sec. 2(k), Sec. 15.

42
Moot problem , ¶4, page 2.

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34. The Hon’ble Supreme court gave certain guidelines in order to conclude whether liability
arises on the armed personnel or not.43The guidelines can stated as follows:
 The circumstances in which the person was killed.
 The no. of shots fired.
 Which member fired the shot.
 Intention of such a person in inflicting the death injury.
35. The army convoy when entered the area occupied by Azad tribe. A shot was fired, for
investing, the soldiers came out of the vehicle where they were attacked by a mob which
injured commandant and most of the soldiers. Commandant immediately ordered his men
to retreat to vehicles, where they were further attacked by the mob by petrol bombs to
disperse the crowd the commandant ordered firing in the air and soldier obliged. A group
of attackers managed to attack and catch hold of JCO where they inflicted knife blows
and hit his head with wooden sticks. Commandant on seeing this fired a shot and it killed
the one of the attacker attacking JCO the attacker died and mob dispersed44the above facts
clearly shows that the Commandant has followed due process45 to disperse the attacking
mob which had weapons.
36. Further, the action taken by the commandant was only done in pvt. Defence. 46 The
commandant fired a shot on the attackers when they had already given a knife blow to the
JCO and were hitting him on his head with sticks. JCO though was recovered alive later
but had observed severe injuries on his body.47
37. Also, concerning the newspaper report published on 12th January 2018 about the arbitrary
use of power by the armed forces under the Special Powers to armed forces Act, 2016 , it
is not admissible in the court as evidence. 48 Newspaper is not a document by which

43
Harendra Kumar Deka v. state of Assam and Ors. (2008) GH 0252.

44
Moot problem, para 11, page 5

45
The Armed Forces Special Power Act, 1990, Sec 4(a)

46
The Indian Penal Code, Sec. 96, sec. 100.

47
Moot problem, ¶11, page 5.

48
Moot problem, para 10, page 4.

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allegation of a fact can be proved. 49 The Presumption of genuineness attached to a


newspaper report cannot be treated as proved of the facts mentioned therein.50

4. WHETHER THE FAMILY OF THE VICTIM, KILLED IN THE FIRING


CONDUCTED BY THE ARMY, SHOULD BE GRANTED MONETARY
COMPENSATION.

4.1. DOCTRINE OF SOVEREIGN IMMUNITY

38. The concept of sovereign immunity is considered as a shield on the ground of public
policy by which non-payment of compensation is justified by state. Soverign functions
are those actions of the state for which it is not answerable before the court of law.
Matters such as defence of the country, raising and maintaining armed forces, making
peace in retaining territory, are functions which are indicative of external sovereignty.
The Supreme Court of Calcutta held that the secretary of state is liable only for the extent
of commercial functions and not liable for anything done in exercise of sovereign
powers.51
39. The Protection of Human Rights Act,1993 has made a provision for the protection of
action taken in good faith52 In present case the commandant fired a shot in good faith to
protect the JCO on one of the attackers who inflicted a knife blow upon the JCO and were
hitting the soldier on his head with wooden sticks.53
40. Also , Section 16 of National Security ACT, 1980 states Protection of action taken in
good faith.

4.1.1. PERFORMANCE OF MILITARY DUTY


41. State should be liable if in discharge of statutory duties imposed upon it or its employees,
the employees act negligently or maliciously, whether or not discretion is involved in the

49
The Indian Evidence Act ,1872, Sec. 78(2).

50
The Indian Evidence Act ,1872, Sec. 81.

51
Peninsular and oriental steam navigation co. v. secretary of state for India, (1861) 5 Bom. H.C.R..

52
The Protection of Human Rights Act,1993, Sec. 38.

53
Moot Problem, ¶ 10.

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exercise of such duty.54 The State is not liable for the act of its employees in the exercise
of sovereign functions.5556
42. In present case the Central Government issued marching orders to the most decorated
army regiment called the RajRif to closely monitor breach of borders and resist hostile
activities.57 On 15 January 2018 A group of attackers started pelting stones which hit and
injured the commandant and 20 of his men and they managed to catch hold of Junior
Commissioned Officer and tried to snatch his AK-47 and inflicted knife blow upon the
JCO and hit the soldier on his head with wooden sticks. The commandant fired a shot on
one of the attackers in order to protect the JCO and other soldier from the injury. 58 The act
of the commandant is neither negligently nor maliciously.

4.2. RIGHT OF PRIVATE DEFENCE

43. Nothing is an offence which is done in the exercise of the right of private defence.59
44. Every Person has a right to protect his own body, the body of any other person against
any offence affecting the human body and the property movable or immovable of himself
or any other person. 60 The right commences as against as soon as a reasonable
apprehension of danger to the body arises from an attempt or threat to commit and
offence.61 In present case the act of attackers of pelting stones on soldier which causes
injuries to 21 soldier, burning of vehicles by throwing petrol bombs, snatching of Ak-47
from JCO, infliction of knife blow upon the JCO, hitting soldier on his head with wooden
stick shows apprehension of danger to the JCO.
4.2.1. RIGHT OF PRIVATE DEFENCE OF THE BODY EXTENDS TO CAUSING
DEATH

54
First Law Commission Report, 1956.

55
Union of India v. Harbans Singh, AIR 1959 P&H 39.

56
Thangarajan v. Union of India, AIR 1975 Mad. 32.

57
Moot Problem , ¶ 5.

58
Moot Problem, ¶ 10.

59
The Indian Penal Code , 1860 ,Sec. 96.

60
The Indian Penal Code, 1860 , Sec. 97.

61
Sekar v. State of Rajasthan, 2003 SCC(cri.) 16.

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45. To claim a right of pvt. Defence extending to voluntarily causing death , the accused must
show that there were circumstances giving rise to reasonable grounds for apprehension
that either death or grievous hurt would be caused to him. 62 In the case in hand the fact
that the JCO was brought back alive but with severe injuries in itself implies that there
was reasonable apprehension of his death.63
5. THE INVESTIGATION MUST NOT BE HANDED OVER TO AN
INDEPENDENT AGENCY.
46. There should not be any further investigation in the present case because it will hurt the
morale of the army personnels who are fighting against adversities, rampant terrorism and
tough terrains for safeguarding territorial and sovereign integrity of Bharat. These army
officials cannot be treated as ordinary criminals.64 Furthermore, as the above incident was
done in the line of active duty the incidents should be investigated and the case should be
adjudged in the court martial65 as court martial has jurisdiction over offences committed
during active line of duty 66 and when criminal court and court martial have each
jurisdiction in respect of an offence, it shall be the discretion of the officer commanding
the army , army corps, division or independent brigade in which the accused person is
serving or such other officer as may be prescribed to decide before which court the
proceedings have to be executed.67 Also it was held by the Supreme Court that an offence
committed by a member of armed forces must be tried under the provisions of the Army
Act through Court Martial proceedings and not under the Code of Criminal Procedure.68
So , in case if investigation is to be done, it must be done by court martial.

62
Vishvas Aba Kurane v. State of Maharashtra AIR 1978 SC 414: 1978 CrLJ 484.

63
Moot problem, ¶ 11.

64
Supra note 9.

65
The Army Act, 1950.

66
The Army Act, 1950, Sec. 70.

67
The Army Act, 1950, Sec. 125.
68
Balbir Singh v. State of Punjab (1995) 1 SCC 90.

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PRAYER

Wherefore in light of the issues raised, arguments advanced and authorities cited it is most
humbly and respectfully requested that this Hon’ble Court to adjudge and declare:

I. That issue the Writ of Prohibition to quash the FIR and entire criminal proceedings
against the commandant and the JCO.
II. That Special Powers to the Armed Forces Act, 2016 is constitutionally valid.
III. That investigation of the incident is not to be given to any independent agency.
IV. That issue a writ of mandamus or any other appropriate writ directing the local Police
authorities to register a First Information Report against the persons involved in the
terrorist activities.

The court may also be pleased to any other order, which this Hon’ble court may deem fit in
light of justice, equity and good conscience. All of which is respectfully submitted on behalf
of

The Petitioners

Sd/-

(Counsel for the “petitioners”)

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