Class Moot

UILS ACADEMIC MOOT COURT, 2017
IN THE COURT OF HON’BLE ADDITIONAL SESSIONS JUDGE AT

DHOLAKPUR
Criminal Case No. ………. of 2017
STATE OF HARYANA
… COMPLAINANT
V.
DHARAM SINGH
… ACCUSED
MEMORIAL ON BEHALF OF THE ACCUSED
ANSHUL SINGHAL,
127/13, SECTION-C, B.COM. LL.B.,
9TH SEMESTER, UILS
PANJAB UNIVERSITY, CHANDIGARH.
TABLE OF CONTENTS
S. NO. PARTICULARS PAGE NO.
1. INDEX OF AUTHORITIES (ii)
2. STATEMENT OF FACTS (vi)
3. STATEMENT OF JURISDICTION (vii)
4. STATEMENT OF CHARGES (viii)
5. SUMMARY OF ARGUMENTS (ix)
6. ARGUMENTS ADVANCED 1-12

I. WHETHER THE ACCUSED SHOULD BE CONVICTED UNDER
SECTION 121 FOR WAGING WAR AGAINST THE
GOVERNMENT?
II. WHETHER THE ACCUSED SHOULD BE CONVICTED UNDER
SECTION 124A FOR THE OFFENCE OF SEDITION?
III. WHETHER THE ACCUSED IS GUILTY UNDER SECTION
120B OF THE INDIAN PENAL CODE OR NOT?
7. PRAYER (x)
MEMORIAL FOR DEFENCE i

INDEX OF AUTHORITIES
ABBREVIATIONS USED:
S. No. ABBREVIATION FULL FORM

1. & And
2. § Section
3. ¶ Paragraph
4. AIR All India Reporter
5. All. Allahabad
6. Anr. Another
7. Bom Bombay
8. Cal Calcutta
9. Co. Company
10. Cr Criminal
11. CrPC Criminal Procedure Code
12. Ed. Edition
13. HC High Court
14. Hon’ble Honourable
15. Inc. Incorporated
16. IPC Indian Penal Code
17. LR Law Reporter
18. Ltd. Limited
19. Mad Madras
20. Mad Madras
21. Nag Nagpur
22. NCT National Capital Territory
23. Ors. Others
24. Pat. Patna
25. Pvt. Private
26. Pvt. Private
27. r/w Read with
28. Raj Rajasthan
MEMORIAL FOR DEFENCE ii

29. SC Supreme Court

30. SCC Supreme Court Cases
31. SCR Supreme Court Reporter
32. u/s Under section
BOOKS REFERRED:
1. RP KATARIA & SKA NAQVI, BATUK LAL’S COMMENTARY ON THE INDIAN PENAL CODE,
1860 (1st ed. Orient Publishing Co. Allahabad 2007).
2. KI VIBHUTE, PSA PILLAI’S CRIMINAL LAW (12th ed. Lexis Nexis, Gurgaon, Reprint
2015).
3. KD GAUR, INDIAN PENAL CODE (5th ed. Universal Law Publishing Co. New Delhi,
2014).
4. SN MISHRA, INDIAN PENAL CODE (19th ed. Central Law Publications, Allahabad
Reprint 2014).
5. MP TANDON, INDIAN PENAL CODE (26th ed. Allahabad Law Agency, Faridabad 2015).
6. HARI SINGH GAUR, COMMENTARIES ON INDIAN PENAL CODE (12th ed. Law Publishers
(India) Pvt. Ltd. Allahabad 2005).
7. RATANLAL RANCHHODDAS & DHIRAJLAL KESHAVLAL THAKORE, THE INDIAN PENAL

CODE (28th ed. Wadhwa & Co. Nagpur, 1997).
CASES REFERRED:
S. NO. NAME OF THE CASE CITATION PAGE NO.
1. Arjun Arora v. Emperor AIR 1937 All 295 8
2. Balwant Singh v. State of Punjab AIR 1995 SC 1785 9
3. Bimbadhar Pradhan v. State of Orrisa AIR 1956 SC 469 12
4. Emperor v. Sadashiv AIR 1947 PC 82 5
MEMORIAL FOR DEFENCE iii

5. Hasrat Mohani v. Emperor (1922) 24 Bom LR 3

885
6. Kedar Nath v. State of Bihar AIR 1962 SC 955 6, 7
7. Kunhi Kadir v. Emperor AIR 1922 Mad 126 3
8. Magan Lal v. Emperor AIR 1946 Nag 173 1
9. Mir Hasan Khan v. State of Bihar AIR 1951 Pat 60 4
10. Nazir Khan v. State of Delhi AIR 2003 SC 4427 3
11. Pan American World Air Inc. v. Actna Cas 505, F.R. 2d 989 2
& Sur Co
12. Queen Empress v. Bal Gangadgar Tilak (1897) ILR 22 Bom 9
112
13. Queen Empress v. Jogendra Chander Bose (1891) ILR 19 Cal 35 9
14. Raghuvir Singh v. State of Bihar AIR 1987 SC 149 6
15. Ramchandra v. Emperor 29 Cr LJ 381 (Lah) 6
16. Satyaranjan Bakshi v. Emperor AIR 1927 Cal 698 7
17. State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 2
18. Topandas v. State of Bombay (1955) 2 SCR 881 12
DICTIONARIES REFERRED:
1. BLACK’S LAW DICTIONARY.
2. MERRIAM WEBSTER DICTIONARY.
3. OXFORD ENGLISH DICTIONARY.
STATUTES REFERRED:
1. CODE OF CRIMINAL PROCEDURE, 1973.
2. INDIAN PENAL CODE, 1860.
MEMORIAL FOR DEFENCE iv

3. INDIAN EVIDENCE ACT, 1872.
WEB LINKS REFERRED:
1. http://thelawdictionary.org/quo-animo/.
2. https://www.lawteacher.net/free-law-essays/constitutional-law/waging-a-war-against-
the-state-constitutional-law-essay.php.
3. https://www.nls.ac.in/resources/csseip/Files/SeditionLaws_cover_Final.pdf.
4. https://www.legallyindia.com/views/entry/a-closer-reading-of-the-supreme-court-of-
india-decision-in-kedar-nath-singh-vs-state-of-bihar-1962-on-the-offence-of-sedition-
defined-in-section-124a-ipc.
5. http://lawtimesjournal.in/criminal-conspiracy/.
MEMORIAL FOR DEFENCE v

STATEMENT OF FACTS AS PER THE PROSECUTION
RESERVATION TO GUJAR COMMUNITY AND MUSLIM COMMUNITY
The State of Haryana gave reservation to the gujar community as well as the Muslim
community. The reservation given to the Muslim Community has been challenged before the
Hon’ble High Court and the matter is pending. Dharam Singh (accused) belonging to a jaat
political family, initiated a movement claiming reservation for jaat community to fulfil his
political dreams. Dharam Singh formed a new political party named Jaat Aarakshan Andolan
Samiti.
II
ORGANISATION OF RALLY
The party organised a rally in Dholakpur on 11 September without permission. The police was
directed to keep a close watch and may leaders were also arrested. Luckily, Mr. Dharam Singh
reached the rally ground and reached the rally ground and gave a short speech thus, condemning
the state. There were heated arguments among the public and effigy of a famous political leader
was burnt.
III
THE ARREST
Dharam Singh was then arrested by the police and after that there was unrest in the state due
to which many people died, and many people got injured. A video was made which has been
sent to the FSL, the report of which is awaited.
An FIR was thereafter lodged against Dharam Singh u/s 120B, 121 and 124A of the Indian
Penal Code. The trial was, hence, commenced.
MEMORIAL FOR DEFENCE vi

STATEMENT OF JURISDICTION
The prosecution has brought this case under § 1771 r/w 2092 r/w schedule 1 of the Code of
Criminal Procedure, 1973 after submitting the investigation report u/s 173 (2) of the Code of
Criminal Procedure.
1
Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was
committed.
2
When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate
and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-
(a) 1 commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to
the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody
until such commitment has been made;]
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the
conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in
evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.
MEMORIAL FOR DEFENCE vii
STATEMENT OF CHARGES
The charges have been framed by the court of judicial magistrate first class u/s 120B, 121 and
124A of the Indian Penal Code, 1860 after which finding that the case is exclusively triable by
the court of sessions and hence, the case was committed to the court of sessions following the
procedure laid down under §§ 207-209 dealing with the committal proceedings of the Code of
Criminal Procedure Code.
MEMORIAL FOR DEFENCE viii

SUMMARY OF ARGUMENTS
ISSUE I: WHETHER THE ACCUSED SHOULD BE CONVICTED UNDER SECTION 121 FOR
WAGING WAR AGAINST THE GOVERNMENT?
It is submitted that the essentials of the offence are not fulfilled in this particular case and that
the accused has not committed any such act which can come within the purview of § 121 of
the Indian Penal Code and the accused has in no way tried to wage war or create a situation of
insurgency or rebellion or revolution or civil unrest. The accused is not guilty under section
121 of IPC because the act of the accused does not come within the definition of the term war
as it appears in the section.
ISSUE II: WHETHER THE ACCUSED SHOULD BE CONVICTED UNDER SECTION 124A FOR
THE OFFENCE OF SEDITION?
It is submitted that the ingredients of the section are not fulfilled. Moreover, speaking
something about the measures taken by the government cannot be termed as constituting
sedition. The speech given was against a particular political party and not against the
government as a whole and it did not strike at the very existence of the government and hence,
the accused is not guilty under section 124A of the IPC. In addition to this, the ingredients of
the section are not fulfilled.
ISSUE III: WHETHER THE ACCUSED IS GUILTY UNDER SECTION 120B OF THE INDIAN
PENAL CODE OR NOT?
The basic ingredient of § 120A is that there should be at least two persons but in this case, there
is only one person, i.e., the accused and no other person is there and hence, the accused is also
not liable u/s 120B.
MEMORIAL FOR DEFENCE ix

ARGUMENTS ADVANCED
MOST RESPECTFULLY SHOWETH:
I. WHETHER THE ACCUSED SHOULD BE CONVICTED UNDER SECTION 121 FOR WAGING
WAR AGAINST THE GOVERNMENT?
1. It is submitted that the accused is not guilty u/s 1213 because the ingredients of this
section are not satisfied in this matter and as such without any evidence on record, no
conviction can be obtained.
2. The accused has given a statement which has no effect like of initiating or waging war
against the government. The offence of waging war punishable u/s 121 of the Indian
Penal Code, 1860 is a continuing offence.
3. In determining whether a person is guilty u/s 121 the following principles may be
considered4:
a) No specific number of persons is necessary to constitute an offence u/s 121.

b) The number concerned and the manner in which they are equipped or armed is not
material.
c) The true criterion is quo animo did the gathering assemble. Quo animo basically
means with what intention or motive5.
d) The object of the gathering must be to attain by force and violence and object of
general public nature, thereby striking directly against the authority of the
government.
e) There is no distinction between the principal and the accessory and all who take
part in the unlawful act incur the same guilt.6
4. It is submitted that the above conditions are not being satisfied in the present case and
the object of the gathering was never to commit violence of any kind and that is the
reason, why Mr. Dharam Singh (hereinafter referred to as the accused) cannot be
convicted u/s 121.
3
§121 of IPC: Whoever, wages war against the Government of India, or attempts to wage such war, or abets the
waging of such war, shall be punished with death, or imprisonment for life and shall also be liable to fine.
4
RP KATARIA & SKA NAQVI, BATUK LAL’S COMMENTARY ON THE INDIAN PENAL CODE, 1860 (1st ed. Orient
Publishing Co. Allahabad 2007, p. 497).
5
http://thelawdictionary.org/quo-animo/ assessed on 06-11-2017 at 16:25.
6
Magan Lal v. Emperor, AIR 1946 Nag 173.
MEMORIAL FOR DEFENCE 1
5. Section 121 deals with 3 aspects viz. Abetment, attempt and actual war. The section is unique in itself
as it places all the three aspects at par as regards the punishment. Under the general law a distinction
has been made between abetment which has succeeded and abetment which has failed. But as far as
the legislature is concerned it treats both in the same manner because the crime is treated of highest
offence against the state.7
6. In State (NCT of Delhi) v. Navjot Sandhu8, the meaning of the term war was explained
as it appears in § 121 of the Indian Penal Code, 1860. It states that the concept of war
imbedded in Section 121 is not to be understood in international law sense of inter-
country war involving military operations by and between two or more hostile countries.
Section 121 is not meant to punish prisoners of war of a belligerent nation. Apart from
the legislative history of the provision and the understanding of the expression by various
High Courts during the pre-independence days, the Illustration to Section 121 itself
makes it clear that 'war' contemplated by Section 121 is not conventional warfare between
two nations. Organizing or joining an insurrection against the Government of India is
also a form of war. 'Insurrection' as defined in dictionaries and as commonly understood
connotes a violent uprising by a group directed against the Government in power or the
civil authorities. "Rebellion, revolution and civil war are progressive stages in the
development of civil unrest the most rudimentary form of which is insurrection9. An act
of insurgency is different from belligerency. It needs to be clarified that insurrection is
only illustrative of the expression 'war' and it is seen from the old English authorities
referred to supra that it would cover situations analogous to insurrection if they tend to
undermine the authority of the Ruler or Government.
7. So, according to the explanation afforded by the Supreme Court of India in the above-
mentioned case, there must be some violent uprising, civil unrest, revolution, or rebellion
or something like that and otherwise it does not qualify within the definition of the term
‘war’ and the person would not be liable under section 121 of the Indian Penal Code then.
8. Moreover, in the same case, it was also stated that The court must be cautious in adopting
an approach which has the effect of bringing within the fold of section 121 all acts of
lawless and violent act resulting in destruction of public properties etc, and all the acts of
violent resistance to the armed personnel to achieve certain political objectives, the
7
https://www.lawteacher.net/free-law-essays/constitutional-law/waging-a-war-against-the-state-constitutional-
law-essay.php assessed on 07-11-17 at 22:44.
8
(2005) 11 SCC 600 ¶ 275.
9
Pan American World Air Inc. v. Actna Cas & Sur Co., 505, F.R. 2d, 989 at P. 1017.
moment it is found that the object sought to attained is of general public nature, the
offensive violent acts targeted against the armed forces and the public officials should
not be branded as acts of waging war. The expression ‘waging war’ irrespective of how
it was viewed in the long past.
9. An organised movement attended with violence and attacks against the public officials
and armed forces while agitating for the repeal of unpopular law or for preventing
burdensome taxes were viewed as acts of treason in the form of levying war.
10. When Mr. Dharam Singh gave the short speech, immediately after that the result was that
the statue of a famous political leader was burnt, and that people were having heated
arguments among themselves. It is submitted that having heated arguments and burning
down of statues certainly does not qualify and fit into the definition of war as provided
by the Supreme Court in the above-mentioned case. As, it is neither some insurgency nor
civil violent uprising against the state nor is it a rebellion or revolution.
11. The expression ‘waging war’ means waging war in the manner usual in the war.10 It
imports a person arraying himself in defiance of the government in like manner and by
like means as a foreign enemy would do, having gained footing in the realm. The waging
of war is the attempt to accomplish by violence any purpose of a public nature.11 A
deliberate and organised attack upon the government forces or government offices
amounts to a waging of war.12
12. Along with this, it is also submitted that, intention to wage war is the most essential
ingredient under this section. So, it is not sufficient to show that the accused have
attempted to obtain arms, ammunition, etc. The prosecution must show that the seizure
of arms was part and parcel of a larger operation to overthrow the state. Mere making of
speeches threatening to wage war, will not amount to abetment.13
13. To convict a person under this section, it must not only be proved that the persons charged
have planned to obtain possession of an armoury and have used the rifles and
ammunitions so obtained against the state troops14, but also that the seizure of armoury
10
Nazir Khan v. State of Delhi, AIR 2003 SC 4427.
11
Hasrat Mohani v. Emperor, (1922) 24 Bom LR 885.
12
Kunhi Kadir v. Emperor, AIR 1922 Mad 126.
13
KI VIBHUTE, PSA PILLAI’S CRIMINAL LAW (12th ed. Lexis Nexis, Gurgaon, Reprint 2015, p. 333).
14
KD GAUR, INDIAN PENAL CODE (5th ed. Universal Law Publishing Co. New Delhi, 2014, p. 210).
was part and parcel of a planned action in resisting the troops of the state until
successfully capturing the machinery of the government.15
14. It is submitted on the basis of the above submissions, case-laws and the provisions of the
Indian Penal Code that the essentials of the offence are not fulfilled in this particular case
and hence, the accused is not guilty under section 121 of IPC.
15
Mir Hasan Khan v. State of Bihar, AIR 1951 Pat 60.
II. WHETHER THE ACCUSED SHOULD BE CONVICTED UNDER SECTION 124A FOR THE
OFFENCE OF SEDITION?
15. It is submitted that the accused has not committed the offence of sedition as whatever he
has said is well within his fundamental right of freedom of speech and expression and as
such he cannot be put behind the bars for an offence which he has not even committed.
16. The offence of sedition has been explained under section 124A16 of the Indian Penal
Code. The word sedition does not occur in § 124A. It is only found as a marginal note to
§ 124A and is not an operative part of the section, but merely provides the name by which
the crime defined in the section will be known.17
17. § 124A was added to the Code in 1870 and at that time it was not in the present form.
This section was amended in 1891 and explanations were added to it.18
18. The essential ingredients of the section are19:
a) Bringing or attempting to bring into hatred or contempt or exciting or attempting

to excite disaffection towards the government of India and
b) Such act may be done:
a. By words, either spoken or written
b. By signs
c. By visible representation
19. Gist of an offence u/s 124A is the bringing or attempting to bring into hatred or contempt
or exciting or attempting to excite disaffection towards Government.
16
§ 124A of IPC: Whoever, by words, either spoken or written, or by signs, or by visible representation, or
otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards,
the Government established by law in India, shall be punished with imprisonment for life, to which fine may be
added, or with impris-onment which may extend to three years, to which fine may be added, or with fine.
Explanation 1: The expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2: Comments expressing disapprobation of the meas-ures of the Government with a view to obtain
their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not
constitute an offence under this section.
Explanation 3: Comments expressing disapprobation of the admin-istrative or other action of the Government
without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this
section.
17
Emperor v. Sadashiv, AIR 1947 PC 82.
18
SN MISHRA, INDIAN PENAL CODE (19th ed. Central Law Publications, Allahabad Reprint 2014, p. 317).
19
MP TANDON, INDIAN PENAL CODE (26th ed. Allahabad Law Agency, Faridabad 2015, p. 216).
20. In cases under Section 124-A, I.P.C., the Courts have to see the effect on the mind of the
people and they are concerned with the construction of the speech, and the speech has to
be taken as a whole and not just in pieces.20
21. The essence of the offence of sedition under section 124-A, I.P.C., is the intention with
which the language of a speech is used, and that intention has to be judged primarily from
the language itself. The gist of the offence under section 124-A lies in the intention of
the writer to bring into hatred and contempt the Government and is not to be gathered
from isolated or stray passages here and there but from a fair and generous reading of the
article as a whole.21
22. Sedition is nothing but libel though it is not subject to the same rule. Where a person
defames he is punishable under § 500, if libel affects a class or community, it would be
an offence u/s 153A, if it is of the state, it is an offence under this section.22
23. The term government established by law has to be distinguished from the persons for the
time being engaged in carrying on the administration. Government established by law is
visible symbol of the state. The very existence of the state will be in jeopardy if the
Government established by law is subverted. Hence, the continued existence of
government established by law is essential condition of the stability of the state.23
24. The explanations appended to the main body of the section make it clear that the
criticisms of public measures or comment on Government action, however, strongly
worded would be, within the reasonable limits and would be consistent with the
fundamental right 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 law steps in to prevent such activities in the
interest of public order.24
25. In a charge under section 124-A of the penal code, the prosecution must prove to the hilt
that the intention of the writer or the speaker, whoever he may be, is to bring into hatred
or contempt or excite or attempt to excite disaffection towards the Government
20
Raghuvir Singh v. State of Bihar, AIR 1987 SC 149.
21
Ramchandra v. Emperor, 29 Cr LJ 381 (Lah).
22
HARI SINGH GAUR, COMMENTARIES ON INDIAN PENAL CODE (12th ed. Law Publishers (India) Pvt. Ltd.
Allahabad 2005, p. 401).
23
Kedar Nath v. State of Bihar, AIR 1962 SC 955.
24
Kedar Nath v. State of Bihar, AIR 1962 SC 955.
established by law in British India. The essence of the crime of sedition, therefore,
consists in the intention with which the language is used and what is rendered punishable
by section 124-A of the penal code is the intentional attempt, successful or otherwise, the
rouse as against Government the feelings enumerated in the section, a mere tendency in
an Art. to promote such feelings is not sufficient to justify a conviction; in other words,
the prosecution must bring home to the accused that his intention was as is described in
the section itself.25
26. The truth remains that while the SC has stayed firm in its opinion on sedition from Kedar
Nath onwards, the lower courts seem to continuously disregard this interpretation of the
law, most recently seen in the verdict against Dr Binayak Sen. The law on sedition is
being used to stem any sort of political dissent in the country, and also any alternate
political philosophy which goes against the ruling party’s mindset.26
27. This 1962 case was the first time that the Supreme Court had to consider the legality of
the colonial law on sedition (Section 124A IPC which was enacted in 1870) in post
independent India and in the context of the newly created fundamental right to free
speech under Article 19. Both Section 124A and Section 505 IPC were under challenge
as unconstitutional in the light of Article 19.
28. Bound to deal with precedent (even if the earlier cases were from the colonial era) the
Supreme Court was faced with two directly conflicting interpretations of Section 124A.
The Federal Court in Niharendu Dutt's case had interpreted Section 124A in alignment
with British law on sedition and held that a tendency to disturb public order was an
essential element of the offence under s. 124A. On the other hand, a line of cases
including the sedition case of Bal Gangadhar Tilak and culminating in the Privy Council
decision in the case of King-Emperor v. Sadashiv Narayan Bhalerao had held that
incitement to violence or a tendency to disturb public order was not a necessary
ingredient of the offence under s. 124A.27
25
Satyaranjan Bakshi v. Emperor, AIR 1927 Cal 698.
26
https://www.nls.ac.in/resources/csseip/Files/SeditionLaws_cover_Final.pdf assessed on 06-11-17 at 21:44.
27
https://www.legallyindia.com/views/entry/a-closer-reading-of-the-supreme-court-of-india-decision-in-kedar-
nath-singh-vs-state-of-bihar-1962-on-the-offence-of-sedition-defined-in-section-124a-ipc assessed on 07-11-17
at 21:44.
29. The offence of sedition is an offence against the State. As understood in England the
crime of sedition fell short of actual treason, and did not involve the actual use of force
or violence.
30. In its analysis of Section 124A, the Supreme Court in Kedar Nath Singh first noted that
the words “Government established by law" were not a reference to “the person's for the
time being engaged in carrying on the administration" but referred to the Government as
the visible symbol of the State. The Supreme Court clarified that the crime of sedition
was a crime against the State and was intended to protect the very existence of the State.
The purpose of the crime of sedition was to prevent the Government established by law
from being subverted because “the continued existence of the Government established
by law is an essential condition of the stability of the State”.28
31. In Kedar Nath Singh, the Supreme Court also clarified what is not sedition. The following
statements are not involved in the definition of sedition:
a) it clarified that mere “strong words used to express disapprobation of the measures
of Government with a view to their improvement or alteration by lawful means” is
not sedition.
b) It clarified that “comments, however strongly worded, expressing disapprobation

of actions of the Government, without exciting those feelings which generate the
inclination to cause public disorder by acts of violence” is not sedition.
c) It clarified that “commenting in strong terms upon the measures or acts of

Government, or its agencies, so as to ameliorate the condition of the people or to
secure the cancellation or alteration of those acts or measures by lawful means, that
is to say, without exciting those feelings of enmity and disloyalty which imply
excitement to public disorder or the use of violence” is not sedition.
32. It has been held in a case that to suggest a change in the form of government cannot be
said to be causing disaffection towards the government established by law or to bring
present government into hatred or contempt.29
28
https://www.legallyindia.com/views/entry/a-closer-reading-of-the-supreme-court-of-india-decision-in-kedar-
nath-singh-vs-state-of-bihar-1962-on-the-offence-of-sedition-defined-in-section-124a-ipc.
29
Arjun Arora v. Emperor, AIR 1937 All 295.
33. In Queen Empress v. Jogendra Chander Bose30, it was held that disaffection means a
feeling contrary to affection, in other words, dislike or hatred.
34. In Queen Empress v. Bal Gangadgar Tilak31, it was held that disaffection means hatred,
enmity, dislike, hostility, contempt and every form of ill-will to the government.
35. In Balwant Singh v. State of Punjab32, the accused were alleged to have raised some
slogans on the day Smt. Indira Gandhi, the then Prime Minister of India was assassinated,
in a crowded place. The accused were government servants. The prosecution case was
that they raised slogans a couple of times, which however did not, evoke any response
from the public. No disturbance whatsoever was caused and the people in general were
unaffected and carried on with their activities. The Supreme Court held that mere raising
of slogans, once or twice by two individuals, some cannot be said to be aimed at exciting
or attempting to excite hatred or disaffection towards the government as established by
law in India. The court felt that the police officials read too much into the slogans and
exhibited lack of maturity and sensitivity in arresting the two government servants.
36. It is submitted on the basis of above-mentioned authorities that no offence of sedition is

made out. The ingredients of the section are not fulfilled. Moreover, speaking something
about the measures taken by the government cannot be termed as constituting sedition.
The speech given was against a particular political party and not against the government
as a whole and it did not strike at the very existence of the government and hence, the
accused is not guilty under section 124A of the IPC.
30
(1891) ILR 19 Cal 35.
31
(1897) ILR 22 Bom 112.
32
AIR 1995 SC 1785.
III. WHETHER THE ACCUSED IS GUILTY UNDER SECTION 120B OF THE INDIAN PENAL CODE
OR NOT?
37. Section 120A33 of the Indian Penal Code, is that on Criminal Conspiracy. The section
looks to hold two or more persons liable for conspiring to do an ‘illegal act’, i.e. to hold
them liable for an offence which they haven’t done yet; but agreed and planned to do. §
120B34 is the penalising section.
38. Criminal Conspiracy, finds its origins in the British Colonial times. A lot of these laws
like Conspiracy, Sedition etc. were tools for the British to reduce unrest amongst the
Indian Masses and maintain the Company’s/Crown’s sovereignty over the Indian
Subcontinent. The Indian masses at the time, acted against the British State, in groups:
often meeting up prior to the act. With a lot of acts being of the nature which would
require planning, Conspiracy Laws were enacted in India, to not only make the said act
against the British illegal but also, planning the same illegal: deterring not only action
but also the thought of causing such action.
39. Today, as the current section of Criminal Conspiracy (120 A) is worded, it is a section
often used against the agreement towards actions which are ‘illegal’ in nature, or not
‘illegal by illegal means’.
40. The term “Illegal” as has been defined under the IPC Section 43 “The word “illegal” is
applicable to everything which is an offence, or which is prohibited by law, or which
furnishes ground for a civil action.
33
§ 120A of IPC: When two or more persons agree to do, or cause to be done,
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated as criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy
unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental
to that object.
34
§ 120B of IPC: (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death,
imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express
provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he
had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable
as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or
with fine or with both.
41. A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded
or frustrated by choice of necessity. During this subsistence, any act done by one of the
parties to it related to the agreement, will come under the purview of this section. 35
42. The punishment for a criminal conspiracy is more severe if the agreement is one to
commit a serious offence, it is less severe if the agreement is one to commit an act which
although is illegal is not an offence punishable with death, imprisonment for life or
rigorous imprisonment for more than two years.36
43. It is submitted that it is clearly written that where express provision is made for
conspiracy then § 120B is not applicable and here, in this instant case, conspiracy for
waging war is punishable u/s 121A and hence, the charge of § 120B is not sustainable in
this present case.
44. Another case in this present moot problem is the conspiracy for the offence of sedition
and for which no express provision has been made has to be dealt with within the ambit
of § 120A and § 120B.
45. The main ingredients of § 120A are:
a) There should be two or more persons.
b) There should be an agreement between themselves.
c) The agreement must be to do or cause to be done:
a. An illegal act.
b. A legal act by illegal means.
46. It is submitted that there is no proof that there was any person other than Mr. Dharam
who was involved with him in the speech that he gave. Hence, the first ingredient is not
fulfilled.
47. It is further submitted that as there was no two persons there can be no agreement because
an agreement presupposes the existence of two persons.
35
http://lawtimesjournal.in/criminal-conspiracy/.
36
RATANLAL RANCHHODDAS & DHIRAJLAL KESHAVLAL THAKORE, THE INDIAN PENAL CODE (28th ed. Wadhwa
& Co. Nagpur, 1997, p. 158).
48. In Topandas v. State of Bombay37, it was held that there must be two or more persons
and one person alone can never be held guilty of criminal trespass for the simple reason
that one cannot conspire with oneself.
49. In Bimbadhar Pradhan v. State of Orrisa38, it was held that it is not essential that more
than one person should be convicted of the offence of criminal conspiracy. All that is
required is that the position is such that the court is aware that two or more persons were
actually concerned in the criminal conspiracy.
50. Thus, there need to be at least two people for the agreement to commit an offence and a
single person can’t be held liable for the offence under this section.
51. Meeting of minds is an essential. However, mere knowledge or discussion is not

sufficient. It is intention to commit crime and joining hands with persons having the same
intention. It would not be enough for the offence of conspiracy when some of the accused
merely entertained a wish that offence be committed. In the absence of an agreement, a
mere thought to commit a crime doesn’t constitute the offence. The offence of conspiracy
is a substantive offence. It renders the mere agreement to commit an offence punishable
even if no offence takes place pursuant to that agreement.
52. There is a clear difference between an agreement to commit an offence and an agreement
of which either the object or methods employed are illegal but do not constitute an
offence. In the case of the former, the criminal conspiracy is completed by the act of
agreement; in the case of latter, there must be some act done by one or more of the parties
to the agreement to effect the object thereof, that is, there must be an overt act.39
53. Hence, it is submitted that the accused is not liable to be convicted u/s 120B of the Indian
Penal Code.
37
(1955) 2 SCR 881.
38
AIR 1956 SC 469.
39
http://lawtimesjournal.in/criminal-conspiracy/.
PRAYER
Whereof in the light of facts of the instant case, written pleadings and authorities cited, it is
humbly prayed before this Hon'ble Court that it may be pleased to hold, adjudge and declare:
1. That the accused is not guilty for offence u/s 120B.
2. That the accused is not guilty for offence u/s 121.
3. That the accused is not guilty for offence u/s 124A.
Pass any other order, which the court may deem fit in light of the facts of the case and justice,
equity and good conscience.
Sd/-
Counsel for the Defence
MEMORIAL FOR DEFENCE x

Class Moot

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Class Moot

Uploaded by

Copyright:

Available Formats

UILS ACADEMIC MOOT COURT, 2017

IN THE COURT OF HON’BLE ADDITIONAL SESSIONS JUDGE AT

Criminal Case No. ………. of 2017

MEMORIAL ON BEHALF OF THE ACCUSED

S. NO. PARTICULARS PAGE NO.

1. INDEX OF AUTHORITIES (ii)

2. STATEMENT OF FACTS (vi)

3. STATEMENT OF JURISDICTION (vii)

4. STATEMENT OF CHARGES (viii)

5. SUMMARY OF ARGUMENTS (ix)

6. ARGUMENTS ADVANCED 1-12

MEMORIAL FOR DEFENCE i

S. No. ABBREVIATION FULL FORM

MEMORIAL FOR DEFENCE ii

29. SC Supreme Court

7. RATANLAL RANCHHODDAS & DHIRAJLAL KESHAVLAL THAKORE, THE INDIAN PENAL

S. NO. NAME OF THE CASE CITATION PAGE NO.

1. Arjun Arora v. Emperor AIR 1937 All 295 8

2. Balwant Singh v. State of Punjab AIR 1995 SC 1785 9

3. Bimbadhar Pradhan v. State of Orrisa AIR 1956 SC 469 12

4. Emperor v. Sadashiv AIR 1947 PC 82 5

MEMORIAL FOR DEFENCE iii

5. Hasrat Mohani v. Emperor (1922) 24 Bom LR 3

7. Kunhi Kadir v. Emperor AIR 1922 Mad 126 3

8. Magan Lal v. Emperor AIR 1946 Nag 173 1

9. Mir Hasan Khan v. State of Bihar AIR 1951 Pat 60 4

10. Nazir Khan v. State of Delhi AIR 2003 SC 4427 3

14. Raghuvir Singh v. State of Bihar AIR 1987 SC 149 6

15. Ramchandra v. Emperor 29 Cr LJ 381 (Lah) 6

16. Satyaranjan Bakshi v. Emperor AIR 1927 Cal 698 7

17. State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 2

18. Topandas v. State of Bombay (1955) 2 SCR 881 12

1. BLACK’S LAW DICTIONARY.

2. MERRIAM WEBSTER DICTIONARY.

3. OXFORD ENGLISH DICTIONARY.

1. CODE OF CRIMINAL PROCEDURE, 1973.

2. INDIAN PENAL CODE, 1860.

MEMORIAL FOR DEFENCE iv

3. INDIAN EVIDENCE ACT, 1872.

WEB LINKS REFERRED:

MEMORIAL FOR DEFENCE v

STATEMENT OF FACTS AS PER THE PROSECUTION

RESERVATION TO GUJAR COMMUNITY AND MUSLIM COMMUNITY

MEMORIAL FOR DEFENCE vi

MEMORIAL FOR DEFENCE viii

MEMORIAL FOR DEFENCE ix

MOST RESPECTFULLY SHOWETH:

a) No specific number of persons is necessary to constitute an offence u/s 121.

18. The essential ingredients of the section are19:

a) Bringing or attempting to bring into hatred or contempt or exciting or attempting

b) Such act may be done:

a. By words, either spoken or written

b) It clarified that “comments, however strongly worded, expressing disapprobation

c) It clarified that “commenting in strong terms upon the measures or acts of

36. It is submitted on the basis of above-mentioned authorities that no offence of sedition is

45. The main ingredients of § 120A are:

a) There should be two or more persons.

b) There should be an agreement between themselves.

c) The agreement must be to do or cause to be done:

b. A legal act by illegal means.

51. Meeting of minds is an essential. However, mere knowledge or discussion is not

1. That the accused is not guilty for offence u/s 120B.

2. That the accused is not guilty for offence u/s 121.

3. That the accused is not guilty for offence u/s 124A.