Respondent Memo

IN THE HON’BLE SUPREME COURT OF INDIA
APPEAL NO. _____ OF 2014
SK & JD ____________________ Appellant
v.
BACHPAN & Ors. ____________________ Respondent
WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT
Most Respectfully Submitted to the Hon’ble

Supreme Court of India
4th FYLC RANKA NATIONAL MOOT COURT COMPETITION – 2014

UFYLC
-TABLE OF CONTENTS- -MEMORIAL ON BEHALF OF RESPONDENT-
INDEX
INDEX OF ABBREVIATIONS………………………………………………………………………III
INDEX OF AUTHORITIES…………………………………………………………………….……IV
STATEMENT OF JURISDICTION………………………………………………………...…………X
SYNOPSIS OF FACTS……………………………………………………………………………….XI
STATEMENT OF ISSUES………………………………………………………………………...XIV
SUMMARY OF ARGUMENTS……………………………………………………………………XV
PLEADINGS………………………………………………………………………………………….1
1. Whether in the light of present facts and circumstances of the case, the judgment of
the High Court of Rajasthan is valid?....................................................................1
1.1.There are prima facie allegations against the appellants....................................1
1.2.The appellants are liable to pay cost-cum-compensation to the victims…………4
1.3.The sanction is not required to be taken for SK from the Central Government…7
2. Whether in the light of present facts and circumstances, the act of media has violated
the privacy of SK and has resulted in defamation..................................................10
2.1 SK cannot claim her Right to Privacy…………………………………………....10
2.2 People has a Right to know about the antecedents of SK………………….…….16
PRAYER…………………………….......…………………………………………………………..XVI
II
-INDEX OF ABBREVIATIONS- -MEMORIAL ON BEHALF OF RESPONDENT-
INDEX OF ABBREVIATIONS
Acc. According
AIR All India Reporter
Anr. Another
Art. Article
Assn. Association
Cr.P.C Criminal Procedure Code, 1973
CJI Chief Justice of India
HC High Court
H.P. Himachal Pradesh
Hon‘ble Honourable
IEA India Evidence Act, 1872
IPC India Penal Code, 1860
Ors. Others
SC Supreme Court
SCC Supreme Court Cases
Sd/- Signed
Sec. Section
U.P Uttar Pradesh
UOI Union of India
v. Versus
& And
III
-INDEX OF AUTHORITIES- -MEMORIAL ON BEHALF OF RESPONDENT-
INDEX OF AUTHORITIES
STATUTES
The Constitution of India, 1950

Indian Penal Code, 1860
Criminal Procedure Code, 1973
Indian Evidence Act, 1872
Protection of Children from Sexual Offences Act,2012
Information Technology Act, 2000
Juvenile Justice (Care and Protection of Children) Act, 2000
Prevention of Money Laundering Act, 2002
The Immoral Traffic (Prevention) Act, 1956
Prevention of Corruption Act, 1988
U.N. Convention On The Rights Of The Child, 1989 (Ratified By The Government of
India in 1992)
TABLE OF CASES
Judicial Decisions Citation Footnote No.

A. K. Jain S/O P. R. Jain v. Government Of Decision by Central
Nct Of Delhi Administrative Tribunal,
Principle bench, New 67
Delhi on 31st august 2009
by V.K. BALI J. &
RAMESH CHADRA J
Anil Yadav v. State of Bihar AIR 1982 SC 1008 29
Aniruddha Bahal v. State (2010) 119 DRJ 102; 57
(2010) 172 DLT 268
CBI v. Abhishek Verma AIR 2009 SC 2399. 13
Center For Public Interest Litigation v. AIR 2005 SC 4413 38
Union Of India
Court on its own motion v. States 2008 (151) DLT 695 63,84,85
D.K. Basu v. State of West Bengal AIR 1997 SC 610 27
Delhi Domestic Working Women‘s Forum (1995) 1 SCC 14 30,34
v. Union of India
Delhi Transport Corporation v. D.T.C. AIR 1991 SC 101 34
Mazdoor Congress
IV
Dharambir v. CBI (2008) DLT 289 9

Dharma Dutt v. Union of India (2004) 1 SCC 712. 79
Dinesh Trivedi, M.P. and others v. Union of (1997) 4 SCC 306 80,77
India
Francis Coralie Mullin v. The AIR 1981 SC 746 34
Administrator, Union Territory of Delhi
G.P. Pedke v. Syed Javed Ali 1991 Cri LJ 1481 (Bom) 36
Google India Pvt. Ltd. v. Vishakha Criminal Petition No.
Industries Limited 7207 of 2009 of High 3
Court of Andhra Pradesh,
decided on April 19, 2011
Jagjit Singh v. State of Haryana (2006) 11 SCC 1 17
K. Satwant Singh v. The State of Punjab 1960(2) SCR 89 41
K. Venkataramana Reddy v. A. Radha 1991 Cri LJ 498 (AP) 36
K.K Veluswamy v. N. Palaniswamy (2011) 11 SCC 275 4
M.P. Lohia v. State of West Bengal (2005) 2 SCC 686 85
Maulana Mumtaz Ahmed Quasmi S/o Late Criminal Revision No.
Hakim Faquirullah, Former Chairman, 222 of 2010 of HP High
Himachal Pradesh v CNN - IBN 7, Global Court, decided on 55
Broadcast News Limited 07.05.2012 by V.K.
Sharma J.
Mrs. Kavitha Mahesh v. Chief Election 2011 (2) KCCR 1662 3
Commissioners and Election Comission of
India
N. Sri Rama Reddy v. V.V. Giri AIR 1971 SC 1162 15
Olga Tellis & Ors. v. Bombay Municipal AIR 1986 SC 180 34
Corporation
Om Prakash Gupta v. State of U.P (1957) SCR 423 47
Peoples‘ Union for Democratic Rights (1989) 4 SCC 730
(through its Secretary) v. Police 32
Commissioner, Delhi Police HQs.
People's Union for Civil Liberties (PUCL) (1997) 1 SCC 301 49,78
v. Union of India
Pukhraj v. State of Rajasthan (1973) 2 SCC 701 36
R. Rajagopal v. State of Tamil Nadu AIR 1995 SC 264 61
R.K. Anand v. Registrar, Delhi High Court (2009) 8 SCC 106 51,64
R.M. Malkani v. State of Maharashtra (1973) 1 SCC 471 10,54
Rajat Prasad v. C.B.I (2014) 6 SCC 495 68
Rajendra Singh Rana v. Swami Prasad AIR 2007 SC 1305 8
Maurya
V
Raja Ram Pal v. Hon‘ble Speaker, Lok (2007) 3 SCC 184 16,18
Sabha
Rudul Sah v. State of Bihar AIR 1983 SC 1086 32
S. Pratap Singh v. State of Punjab AIR 1964 SC 72 12
Sayar kumari v. State 2009 (8) Ad (Del) 696 6
State Of Maharashtra v Bharat Shanti Lal (2008) 13 SCC 5 53
Shah
Secretary, Ministry of Information and AIR 1995 SC 1236
Broadcasting, Govt. of India v. Cricket 79
Association of Bengal
Shri Bodhisattwa Gautam v. Miss Subhra 1996 SCC (1) 490 31,33
Chakraborty
Shri N. Sri Rama Reddy, Yusufalh Esmail AIR 1968 SC 147 11
Nagree v. State of Maharashtra
Sidhartha Vashisht @ Manu Sharma v. state (2010) 6 SCC 1 65
of N.C.T Delhi
Sri Nithyananda Swami v. S.Arathi Rao (2012) 7 Mad LJ 796. 50
State of Maharashtra v. R.S. Nayak AIR 1982 SC 1249 37
State of Maharashtra v. Chandrabhan AIR 1983 SC 803 34
State of U.P v. Raj Narain AIR 1975 SC 865 81
State v. Mohd. Afzal 2003 VII AD (Delhi) 1 20
Sube Singh v. State of Haryana AIR 2006 SC 1117 7
Suresh Kumar Koushal and another v. NAZ (2014) 1 SCC 1 56
Foundation
Tarun J. Tejpal & Anr. v. Jayalakshmi Jaitly ILR (2008) 1 Del 35 83
Tata Sons Limited v Workmen 2013 (203) DLT 453 62
Thol.Thiruma Valavan v. State Of Tamil Decision by the Madurai

Nadu Bench of Madras High 28
Court on 23/12/2011 by
K.N. Basha J. & M.
Venugopal J.
Tukaram S. Dighole v. Manikrao Shivaji 2008 (3) Bom CR 141 1
Kokate
Ziyauddin Burhanuddin Bukhari v. (1976) 2 SCC 17; AIR 3
Brijjmohan Ramdass Mehra 1975 SC 1788
LIST OF BOOKS
GUPTA APAR , (2007) Commentary On Information And Technology Act, 2nd Edition,
VI
LexisNexis Butterworths Wadhuta
BAKSHI P.M., The Constitution of India, 10th Edition, Universal Law Publishing Co.
BASU DD, Commentary on the Constitution of India, Vol.-2,8th Edition 2009, LexisNexis,
Butterworths Wadhwa
BROWNLIE GOODWIN-GILL. (1971) Human Rights, 6th Edition, OXFORD University
Press.
C K TAKWANI (2010), Criminal Procedure, 2ND edition, LexisNexis Butterworths
Wadhwa, Nagpur 19th edition., 2013
DR B L Wadhera (2003) Public Interest Litigation, 2nd Edition, Universal law publication.
DR. H.P. GUPTA (2011) Law of Defamation And Malicious Prosecution, India law house.
DURGA DAS BASU (1980) Law Of The Press, 10th edition 2010. LexisNexis
Butterworths Wadhwa.
GAUR K D Gaur, Criminal Law, 6th Edition, LexisNexis, Butter Worths, Wadhwas
J W CECIL TURNER (2010), Outlines Of Criminal Law, 4th Indian reprint. Universal law
publishing co.
JAIN, M.P (2010) Indian Constitutional Law. 6th Edition. Nagpur: LexisNexis
Butterworths Wadhwa.
JYOTI J.MOZIKA (2013) Law and Protection of Right To Privacy, R. CAMBRY &
CO.PVT. LTD.
K D GAUR (2013) Criminal Law,7th edition. LexisNexis Butterworths Wadhwa.
K. I. VIBHUTE (2004), Criminal Justice, Eastern book company
KARNIKA SETH (2012), Computers internet and new technology laws, Updated edition
2013, LexisNexis
KELKAR R.V., Criminal Procedure, 5th Edition, Eastern Book Company
PANDEY J.N., The Constitutional Law of India, 48th Edition, Central Law Agency
PANDEY, J.N. (2005) Constitutional Law of India. 42nd Edition. Allahabad: Central Law
Agency.
P S A PILLAI‘S (2014) Criminal Law, 12th Edition. LexisNexis Butterworths Wadhwa.
VII
R. DAYAL‘S (2013) Commentary On Sexual Offences, 3rd Edition . Premier publishing

company.
R. V. KELKAR‘S (2011) Criminal Procedure,5th Edition. Eastern book company.
RAI KAILASH, ‗The Constitutional Law of India’, 9thEdition, Central Law Publications
RAM JETHMALANI, D.S. CHOPRA (2013) The law of evidence. First edition 2013.
Thomson reuters.
RAO KESAVA, Law of Evidence, 18th Edition, LexisNexis, Butter Worths Wadhawa
Ratanlal and Dhirajlal‘s, Criminal Procedure Code, Lexis Nexis Butterworths Wadhwal,
Nagpur 19th edition., 2013
Ratanlal and Dhirajlal‘s, India Evidence Act Lexis Nexis Butterworths Wadhuta, Nagpur
21st edn., 2010
Ratanlal and Dhirajlal‘s, Indian Penal Code LexisNexis Butterworths Wadhuta, 30th edn.,
2010
Rodney D. Ryder, Cyber Laws Information Technology Act, 2000, E-Commerce, Data
protection and the Internet, Wadhwa and Company, Law Publishers, New Delhi 3rd edn.,
2007
SARKARIA S K, Indian Penal Code, Vol.-1, 10th Edition, LexisNexis, ButterWorths,

Wadhwas
SARKARIA S K, ‗Indian Penal Code’,Vol.-2, 10th Edition, Lexis Nexis, Butter Worths,
Wadhwas
SINGH, MAHENDRA P. (2008) V.N Shukla’s Constitution of India. 11th Edition.
Lucknow: Eastern Book Company.
SIR JOHN WOODROFFE AND SYED AMIR ALI (1898) Law of evidence, Volume 1
18th edition 2008.( Lexis Nexis Butterworths Wadhuta, Nagpur)
SUDIPTO SARKAR (1956) Code Of Criminal Procedure, 9th Edition reprint 2010.
LexisNexix Butterworths Wadhwa
SWARUP JAGADISH, Constitution of India, Vol- 1 3rd Edition, Thomson Reuters
TUSHAR V. SHAH (2005) The Prevention Of Money Laundering Act, 3rd edition 2013.
Current publication.
VIII
WEB REFERENCES
www.scconline.com
www.westlawindia.com
www.manupatra.com
www.indiankanoon.com
www.timesofindia.indiatimes.com
www.topyaps.com
www.indiatoday.intoday.in
www.legalindia.com
IX
-STATEMENT OF JURISDICTION- -MEMORIAL ON BEHALF OF RESPONDENT-
STATEMENT OF JURISDICTION
The Respondent humbly submits this memorandum before this Hon’ble court. The appeal
has been filed under Article 136(1) of The Constitution of India, 1949. It sets forth the
facts and laws on which the claims are based.
X
-SYNOPSIS OF FACTS- -MEMORIAL ON BEHALF OF RESPONDENT-
SYNOPSIS OF FACTS
BACKGROUND FACTS
Noor Mohammad (hereinafter NM) aged 13 years, was offered a joint by his senior of
Eleventh Standard Rajveer Singh (hereinafter RS) aged 15 years and 11 months. NM tried it
and tried to enquire from RS that what is it actually and from where he got it. In reply RS gave
him an address and asked NM to reach that place. NM reached that spot and found that it was
a deserted new construction where there was hardly anyone. RS reached there with four boys
of age group between 14-19 years around and gave NM a Joint of Marijuana. Two boys from
that group thereafter started ‗touching‘ NM on different parts of his body. NM by that time
was so much inebriated that he failed to understand the nature of that act and thereafter he
lost his senses and slept. On 26.4.2014 NM switched on his mobile and opened his inbox on
Gmail.com. To his horror he saw himself being wantonly molested at the very first by all
those boys and thereafter being sodomized by the entire group one by one.
EXTORTION BY RS
Thereafter, he received a call from RS who warned him of dire consequence of disclosing last
day‘s act to anyone and told him that he would upload the video on Internet. At once he
didn‘t tell to his parents about the incident but after their continuous questioning and mental
assurance, told them the entire unfortunate incident.
After two days, (on 28/04/2014) RS called NM and demanded Rupees 10,000 within 24
hours. He stole his mother‘s gold earrings and paid the ransom. This continued for some time
till NM‘s father realised that things were being stolen from the house. One fine day he
followed NM and saw him delivering money to RS. NM‘s father thereafter went to
―BACHPAN‖, a Non-Governmental Organization (hereinafter NGO) and sought their help.
POLICE INVESTIGATION
The NGO first took NM into confidence, took him to the nearby police-station, got a First
Information Report (F.I.R.) registered (on 5/5/2014) (copying that to the Cyber Cell of the
Police). The police came in swift action, conducted raids and on preliminary investigation
found that not only NM but at least two dozen more male/female teenagers were victims in
XI
the same kind of act. Not only the victims but most of the alleged accused were also found to
be teenagers involved in the gruesome act for easy money.
The police also found post interrogation that the accused not only abused and blackmailed
their victims but also supplied their Video files / Photographs to a person Jai Dev (hereinafter
JD), a citizen of Mumbai where these Video‘s etc. were actually uploaded on free porn sites
available for downloading in public domain. It came out in the investigation reports that the
main Kingpin in the aforementioned affair was no other that Ms. Saloni Kamra who also
happens to be the current Women & Child Development Minister of India and a sitting
Member of Parliament (hereinafter SK) directly in touch with JD. It also came out in the
preliminary investigation that JD was a near relative of SK. The police, for nabbing JD
(through proper channels) sought the help of Police Commissioner and got the information
through Home Ministry.
STING OPERATION
The NGO somehow became aware of this investigation report and other concerned
information(s) and passed on the information to a national newspaper PATRIKA who in turn
conducted a ―Sting Operation‖ (hereinafter OP) on SK on 10/05/2014 in very knotty
circumstances and compiled its data in three various compact discs (C.D.‘s).
Disc 1 contained data showing that SK is taking token money for a bribe from a reputed
multi-billionaire private tycoon active in many sectors in national and trans-national level and
getting a promise from that businessman for depositing the rest of the remaining amount in
―Swiss Bank‖ as directed by SK & JD.
Disc 2 contained data showing that SK is observing the transportation of few children from
orphan homes being transported to a third world country for prostitution etc.
Disc 3 contents data of SK‘s ‗private life‘ involved in natural/unnatural sexual intercourse.
The channel thereafter broadcasted all the three discs on 12/05/2014. Following the
broadcast, almost all the News Channels in the Country aired the same news numerous times
and a huge hue and cry was raised by different sections of the society.
PUBLIC INTEREST LITIGATION

On the basis of the telecasted NEWS by PATRIKA, the NGO went ahead and filed a ―Public
Interest Litigation‖ (hereinafter P.I.L.) in the High Court of Rajasthan at Jaipur for the same
on 15/05/2014 and demanded SK‘s immediate resignation. An inquiry was conducted by the
XII
Central Bureau of Investigation (hereinafter CBI) with a request that the Hon‘ble Court itself
shall monitor the entire investigation as it was a very high profile case. The Hon‘ble High
Court admitted PIL on 20/05/2014 and issued show cause notices for the same to all the
concerned parties.
CASE FILED BY SK
SK also filed a case of Defamation against PATRIKA & NGO on 25/5/2014 alleging her
Right to Privacy enshrined under the Constitution and pleaded that she was not guilty and
moreover that PATRIKA is from no stretch of imagination authorized to put on Television
the news contents like the current one.
JUDGMENT OF HIGH COURT

The matter being of public interest and of national importance, the Hon‘ble High Court after
perused and examined the record. Number of hearings took place day to day equal
opportunity were given to both sides and to some interveners. The Hon‘ble Court held on
30.5.2014 as under:-
(i) There are prima-facie allegations against SK, JD and RS. Further investigation to
be done by CBI and if material is sufficient, prosecution to be launched in the
appropriate court and in accordance with law. No sanction need be taken for SK
from Central Government.
(ii) Cost-cum-compensation of Rs.1.00 lakh was awarded in favour of NM to be paid
by SK and JD equally;
(iii) RS being juvenile be dealt with by Juvenile Court in accordance with law;
(iv) Writ for defamation dismissed. May file suit.
SPECIAL LEAVE PETITION FILED

SK and JD thereafter filed S.L.P. before the Hon‘ble Supreme Court, which was admitted.
The Court clubbed other similar PILs pending before it and other High Courts. It issued
notices to all the States to represent and assist it and fixed 15/7/2014 for final arguments.
XIII
-STATEMENT OF ISSUES- -MEMORIAL ON BEHALF OF RESPONDENT-
STATEMENT OF ISSUES
1. Whether in the light of present facts and circumstances of the case, the judgment of
the High Court of Rajasthan is valid?
2. Whether in the light of present facts and circumstances, the act of media has violated
the privacy of SK and has resulted in defamation?
XIV
-SUMMARY OF ARGUMENTS- -MEMORIAL ON BEHALF OF RESPONDENT-
SUMMARY OF ARGUMENTS
Decision of High Court was correct-

Respondents most humbly submits before this Hon‘ble Court that judgment of High Court in
punishing the appellants, does not suffer from any infirmity and does not lead to any
miscarriage of justice, thus same must be upheld by this court. The submission is threefold.
Firstly; there are prima facie allegations against the appellants. Secondly; the appellants are
liable to pay cost-cum-compensation to the victims. And lastly; the sanction is not required to
be taken for SK from the Central Government.
Respondent Act has not violated the Privacy of SK;-

Counsel for Respondents most humbly submits before this Hon‘ble Court that the act of
media in broadcasting the three discs has not resulted in either violation of privacy or
defamation of SK. The submission is twofold. Firstly; SK cannot claim her Right to Privacy.
And Secondly; People has a Right to know about the antecedents of SK.
XV
-PLEADINGS- -MEMORIAL ON BEHALF OF RESPONDENT-
PLEADINGS
1. Whether in the light of present facts and circumstances of the case, the judgment
of the High Court of Rajasthan is valid?
Respondents most humbly submits before this Hon‘ble Court that judgment of High Court in
punishing the appellants, does not suffer from any infirmity and does not lead to any
miscarriage of justice, thus same must be upheld by this court. The submission is threefold.
Firstly; there are prima facie allegations against the appellants. Secondly; the appellants are
liable to pay cost-cum-compensation to the victims. And lastly; the sanction is not required to
be taken for SK from the Central Government.
1.1. There are prima facie allegations against the appellants-:
With regard to this issue it is humbly submitted before the Hon‘ble Court that the evidences
are enough to establish a prima facie case against SK and JD. In Tukaram S. Dighole v.
Manikrao Shivaji Kokate1, the court observed that it is settled law that tape-records of
Data
speeches are ―documents‖ as defined in Section 32 of the Indian Evidence Act., 18723. The
contained in
court further observed that technology is a ‗powerful medium through which first-hand 3 Disks are
admissible
information about an event can be gathered and in a given situation may prove to be a crucial in the court
piece of evidence‘. of Law
In a case before the Hon‘ble Supreme Court of India, K.K Veluswamy v. N. Palaniswamy,4
the court held that a compact disk containing electronic record of a conversation can be
produced as evidence within meaning of the amended definition of ‗evidence‘ in Section 3 of
1
2008 (3) BomCR 141.
2
Sec. 3 Interpretation clause: In this Act the following words and expressions are use in the following sense.
Unless a contrary intention appears from the context- ―Evidence" – "Evidence" means and includes (1) all
statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact
under inquiry; such statements are called oral evidence; (2) all document including electronic records produced
for the inspection of the Court, such statements are called documentary evidence
3
Ziyauddin Burhanuddin Bukhari v. Brijjmohan Ramdass Mehra , (1976) 2 SCC 17, AIR 1975 SC 1788. MRS.
Kavitha Mahesh v. Chief Election Commissioners and Election Comission of India, 2011 (2) KCCR 1662
(petitioner was permitted to mark the 4 CD‘s identified by the petitioner as documentary evidence in this
petition). See also, Google India Pvt. Ltd. v. Vishakha Industries Limited, Criminal Petition No. 7207 of 2009 of
High Court of Andhra Pradesh, decided on April 19, 2011
4
(2011) 11 SCC 275.
1
Indian Evidence Act, 1872 and ‗electronic record‘ in Section 2(t)5 of the Information
Technology Act, 2000. Similarly in Sayar kumari v. State,6 the court allowed the production
of a video recording as evidence of execution of a will to prove will in question. This
principle was reiterated in Sube Singh v. State of Haryana,7 and Rajendra Singh Rana v.
Swami Prasad Maurya.8
In Dharambir v. CBI,9 the court dealt with a case relating to CD‘s containing the intercepted
telephone conversations as copied from the hard disks and analyzed if they can be considered
as electronic records. The court observed that not only the recordings of the telephone calls
that were intercepted but also the hard disks would be electronic records and documents that
can be produced in evidence. In R.M. Malkani v. State of Maharashtra,10 Shri N. Sri Rama
Reddy, Yusufalh Esmail Nagree v. State of Maharashtra,11 and S. Pratap Singh v. State of
Data
Punjab,12 it was noted that a conversation or dialogue recorded on a tape recording machine contained in
3 disks must
was accepted as admissible evidence. In CBI v. Abhishek Verma,13 the court held that all be treated as
forms of electronic evidence including data on CD, USB and floppy are admissible in direct
evidence
evidence.
All documents including electronic records produced for the inspection of the Court must be
treated as documentary evidence.14 In N. Sri Rama Reddy v. V.V. Giri,15 this Hon‘ble
Supreme Court held that the tape is primary and direct evidence admissible to prove what
was spoken and recorded by the recorder. In the present case also the evidences adduced from
NM and Patrika must be treated as documentary and direct evidences and so they will be
sufficient to prove a prima facie case.
In Raja Ram Pal v. Hon’ble Speaker, Lok Sabha,16 a committee was set up to look into the
matter of 10 Members of Parliament taking bribe, in which an evidence of video recording
5
Section 2(1) (1) In this Act, unless the context otherwise requires,- (t) ―electronic record‖ means data, record
or data generated, image or sound stored, received or sent in an electronic form or micro film or computer
generated micro fiche;
6
2009 (8) Ad (Del) 696.
7
AIR 2006 SC 1117.
8
AIR 2007 SC 1305.
9
148 (2008) DLT 289.
10
(1973) 1 SCC 471.
11
AIR 1968 SC 147.
12
AIR 1964 SC 72.
13
AIR 2009 SC 2399.
14
Dharambir v. Central Bureau Of Investigation, (2008) 102 DRJ 300.
15
AIR 1971 SC 1162.
16
(2007) 3 SCC 184
2
was there and against which the statements of all the said ten members was asked for. The
Committee noted that all the members have denied the allegations levelled against them. The
common strain in their testimony was that the clippings were morphed, out of context and a
result of ‗cut and paste‘. They claimed that the entire exercise was aimed to trap them and
lower the prestige of the Parliament. The Committee gave serious consideration to the
requests made by the said members for being provided the full footage of video recordings,
all the audio tapes and their request for extension of time and being allowed to be represented
through their counsels.
In this context, the Committee observed that all the ten members while deposing before the
Committee were asked whether they would like to view the relevant video footage so that Reference of
Raja Ram
they could point out the discrepancies therein if any. All the members, refused to view the Pal case
relevant video footage. The Committee, therefore, felt that the requests by the members for
unedited and entire video footage would only lead to delaying the consideration of the matter
and serve no useful purpose. The Committee, in lieu of this, also observed that the plea put
forth by the said ten members that the video footages are doctored/morphed/edited has no
merit. If the members had accepted the offer of the Committee to view the relevant footage
and pointed out the interpolated portions in the tape, there would have been justification for
allowing their plea for more time for examining the whole tapes. In view of the totality of the
facts and circumstances of the case, the Committee held that the allegations of accepting
money by the said ten members have been established. And the same was upheld by the
Hon‘ble Supreme Court also.
Also in Jagjit Singh v. State of Haryana17, it was pleaded by six independent Members of the
Haryana Vidhan Sabha that alleged recording in the C.Ds are not genuine. On 24th June,
2004 counsel representing the petitioners were asked by the Speaker to watch the interviews
conducted in New Delhi on 14th June, 2004 by Zee News and Haryana News (Punjab Today
Television Channel) which was available on the compact disc and point out doctoring Reference of
thereof, if any. The counsel, however, did not agree to watch the recording which was shown Jagjit Singh
case
on these two channels. In the replies, petitioners merely denied the contents of the application
without stating how material by way of additional evidence that had been placed on record
was not genuine. The petitioners declined to watch the recording, failed to show how and
what part of it, if any, was not genuine but merely made general denials.
17
(2006) 11 SCC 1.
3
It was observed in this case that the petitioners despite grant of opportunity had declined to
watch the recorded interview, point out in what manner the recording was not genuine and
has adopted the course of vague denial. Under these circumstances, the Speaker concluded
that "there is no room for doubting the authenticity and accuracy of the electronic evidence
produced by the petitioner". And this decision was upheld by this court.
Relying on Raja Ram Pal v. Hon’ble Speaker, Lok Sabha,18and in Jagjit Singh v. State of
Haryana19, that a bald denial of the contents of a video tape is not adequate to doubt its
authenticity - there should be material to show that the video clippings are doctored or Appellant
morphed, it is humbly averred that in the present case the Appellants are just denying their must show
how the data
guilt without stating why they are not guilty and therefore their contentions must not be in the 3
admitted in the court. In State v. Mohd. Afzal,20 (popularly known as Parliament Attack Disks are
not authentic
case), the court held that challenges to accuracy of a computer evidence on ground of misuse,
operating failure or tampering is required to be established by the person challenging its
reliability and mere allegations will not suffice.
1.2. The appellants are liable to pay cost-cum-compensation to the victims.
With regard this submission, the counsel humbly avers that the appellants are liable to pay
cost-cum-compensation to the victim as they have committed brutal acts against him. It is
contended that the incident which took place on 03.04.2014 is an outcome of conspiracy. The
Conspiracy
police in the impugned case, after conducting raids and preliminary investigation found that by SK & JD
apart from NM, more than 24 teenagers were the victims of the act of getting drugged and
then sodomized by the alleged accused who were teenagers.21 Thereafter, their video files and
photographs were sent to JD who uploaded them on free porn sites, and the main kingpin of
this whole affair was SK.22 These all circumstances suggests that there was criminal
conspiracy23 between the teenagers alleged accused and SK and JD.
18
(2007) 3 SCC 184.
19
(2006) 11 SCC 1.
20
2003 VII AD (Delhi) 1.
21
Factsheet.
22
Factsheet.
23
Section 120-A of Indian Penal Code, 1860 and Section 16 of The Protection of the Children from Sexual
Offences Act, 2012.
4
Hence, according to Section 120-B24 of the Indian Penal Code, 1860, they must be held liable
for the abetment of offence of ‗penetrative sexual assault‘ u/s 3 of the Protection of Children
From Sexual Offences Act, 2012.25
It is further submitted that besides the news reports broadcasted by the media, investigation
reports are also against SK and JD as it suggests that they were involved in the uploading of
the videos, generated by alleged accused teenagers and supplied to JD, on free porn sites,
which is an offence u/s 6726 of the Information Technology Act, 2000 and especially u/s 13 Offences
of the Protection of the Children from Sexual Offences Act, 2012. And therefore they have committed
by SK & JD
committed a crime against NM and they must be held liable to pay cost-cum-compensation to
him According to section 357 of the Code of Criminal Procedure, 1973 the order of the High
Court was right and must be upheld by this Hon‘ble Court, as there are prima-facie
allegations against the victim.
In a landmark judgment, in D.K. Basu v. State of West Bengal,27 the court acted upon a letter
petition and treated it as a Public Interest Litigation. The court held that ‗In the assessment of
compensation, the emphasis has to be on the compensatory and not on punitive element. The
Court can
objective is to apply balm to the wounds and not to punish the transgressor or the offender, impose
as awarding appropriate punishment for the offence (irrespective of compensation) must be compensation
and ask for the
fell to the criminal courts in which the offender is prosecuted, which the State, in law, is duty further trial in
bound to do. The award of compensation in the public law jurisdiction is also without appropriate
criminal court
prejudice to any other action like civil suit for damage which is lawfully available to the
victim or the heirs of the deceased victim with respect to the same matter for the tortuous act
committed by the functionaries of the State.‘ In the present case also the High Court has
passed an order to pay compensation to the victim has left the issue of the prosecution to be
determined by the appropriate criminal court.
24
120B. Punishment of criminal conspiracy.— (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.
25
Section 17 of The Protection of the Children from Sexual Offences Act, 2012.
26
Sec. 67 Punishment for publishing or transmitting obscene material in electronic form.:- Whoever publishes
or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or
appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely,
having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be
punished on first conviction with imprisonment of either description for a term which may extend to three years
and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with
imprisonment of either description for a term which may extend to five years and also with fine which may
extend to ten lakh rupees.
27
AIR 1997 SC 610.
5
In Thol.Thiruma Valavan v. State Of Tamil Nadu,28 a Public Interest Litigation was filed and
the court granted compensation to the victim‘s family and to the injured persons. In 1981 the
case of Anil Yadav v. State of Bihar,29 exposed the brutalities of the Police. Newspaper report
Cost-cum-
revealed that about 33 suspected criminals were blinded by the police in Bihar by putting the compensation
acid into their eyes. Through interim orders Supreme Court directed the State government to given in PIL
cases
bring the blinded men to Delhi for medical treatment. In a landmark judgment of Delhi
Domestic Working Women’s Forum v. Union of India,30 the Supreme Court issued guidelines
for rehabilitation and compensation for the rape on working women.
The act of SK and JD has also resulted in the violation of the Human Rights of NM who is a
child as it has resulted in the violation of Article 19 of U.N. Convention on the Rights Of The
Rights of
Child, 1989 as it states that the Children have the right to be protected from being hurt and NM violated
mistreated, physically or mentally and in the present case NM is being hurt both mentally and
physically.
In Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty,31 it was held by this Hon‘ble Court
that Rape is a crime against basic human rights and is also violative of the victim‘s most
cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21.
Supreme Court has the power to award compensation for the violation of the Fundamental
Rights.32 Therefore in the present case also compensation must be granted as the Human Compensation
Right as well as Fundamental Right of NM has been violated. For the exercise of this given when
violation of
jurisdiction, it is not necessary that the person who is the victim of violation of his rights
fundamental right should personally approach the Court as the Court can itself take
cognizance of the matter and proceed suo motu or on a petition of any public spirited
individual.33 This Court has, innumerable times, declared that "Right to Life" does not merely
mean animal existence but means something more, namely, the right to live with human
dignity.34
28
Decision by the Madurai Bench of Madras High Court on 23/12/2011 by K.N. Basha J. & M. Venugopal J.
29
AIR 1982 SC 1008.
30
1995 SCC (1) 14.
31
1996 SCC (1) 490.
32
See Rudul Sah v. State of Bihar, AIR 1983 SC 1086; Peoples' Union for Democratic Rights (through its
Secretary) v. Police Commissioner, Delhi Police HQs., (1989) 4 SCC 730.
33
Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty, 1996 SCC (1) 490.
34
See Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, AIR 1981 SC 746; State of
Maharashtra v. Chandrabhan, AIR 1983 SC 803; Olga Tellis & Ors. v. Bombay Municipal Corporation,
AIR 1986 SC 180; and Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101.
6
1.3 The sanction is not required to be taken for SK from the Central Government.
In order to attract Section 19735 of the Code of Criminal Procedure, 1973 it is necessary that
the accused person must have committed the offence while acting or purporting to act in the
discharge of his official duty. A public servant can be said to act or purport to act in the
discharge of his official duty only if his act is such as to lie within the scope of his official Sanction
36 37 when acting
duty. In State of Maharashtra v. R.S. Nayak, it was held that protection under Section
in official
197 of Cr.PC is available only when alleged act done by public servant is reasonably capicity
connected with discharge of his official duty.38 The test as to the necessity for sanction is
whether the public servant, if challenged, can reasonably claim that what he did; he did in
virtue of his office.
35
Sec 197. Prosecution of Judges and public servants. (1) When any person who is or was a Judge or Magistrate
or a public servant not removable from his office save by or with the sanction of the Government is accused of
any offence alleged to have been committed by him while acting or purporting to act in the discharge of his
official duty, no Court shall take cognizance of such offence except with the previous sanction-(a) in the case of
a person who is employed or, as the case may be, was at the time of commission of the alleged offence
employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person
who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in
connection with the affairs of a State, of the State Government: 1 Provided that where the alleged offence was
committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1)
of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State
Government" occurring therein, the expression" Central Government" were substituted. (2) No Court shall take
cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union
while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the
Central Government.
(3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such
class or category of the members of the Forces charged with the maintenance of public order as may be
specified therein, wherever they may be serving, and thereupon the provisions of that sub- section will apply as
if for the expression" Central Government" occurring therein, the expression" State Government" were
substituted.
(3A) Notwithstanding anything contained in sub- section (3), no court shall take cognizance of any offence,
alleged to have been committed by any member of the Forces charged with the maintenance of public order in a
State while acting or purporting to act in the discharge of his official duty during the period while a
Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the
previous sanction of the Central Government.
(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that
any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during
the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the
date on which the Code of Criminal Procedure (Amendment) Act, 1991 , receives the assent of the President,
with respect to an offence alleged to have been committed during the period while a Proclamation issued under
clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent
for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.]
(4) The Central Government or the State Government, as the case may be, may determine the person by whom,
the manner in which, and the offence or offences for which, the prosecution of such Judge, Magis- trate or
public servant is to be conducted, and may specify the Court before which the trial is to be held.
36
Pukhraj V. State of Rajasthan, (1973) 2 SCC 701; G.P. Pedke v. Syed Javed Ali, 1991 Cri LJ 1481 (Bom); K.
Venkataramana Reddy v. A. Radha, 1991 Cri LJ 498 (AP).
37
AIR 1982 SC 1249.
38
Center For Public Interest Litigation v. Union Of India, AIR 2005 SC 4413.
7
But in the present case she was not acting under the discharge of her official duty. She was
the kingpin of the affair in which the video of the children, being molested and sodomized,
was uploaded on the internet, and being a part of this criminal conspiracy39 was not acting or
purporting to act under her official duty.
Accepting
She has received bribe from a multi-billionaire tycoon and hence have committed an offence bribe is not
the
u/s 740 of The Prevention of Corruption Act, 1988. In K. Satwant Singh v. The State of discharge of
Punjab,41 a Constitution Bench observed that some offences cannot by their very nature be official duty
regarded as having been committed by public servant while acting or purporting to act in the
discharge of their official duty. For instance, acceptance of bribe, an offence punishable
under Section 161 of the Indian Penal Code, 1860 is one of them and offence of cheating and
abetment thereof in another. Hence, her act of taking bribe must not be treated as an act done
in her official duty.
Further, she was a Women & Child Development Minister of India,42 and the data in the Disc
2 was that she was observing the transportation of children from orphan homes for
prostitution. She was doing an act which she herself is duty bound to protect. She has
committed a crime u/s 543 of the Immoral Traffic Act, as it provides that a person who
procure or take a person for prostitution will be liable and here SK is observing transportation
39
Section 120-A of The Indian Penal Code, 1860.
40
Sec. 7 Public servant taking gratification other than legal remuneration in respect of an official act.—
Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain
from any person, for himself or for any other person, any gratification whatever, other than legal remuneration,
as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the
exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any
service or disservice to any person, with the Central Government or any State Government or Parliament or the
Legislature of any State or with any local authority, corporation or Government company referred to in clause
(c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment
which shall be not less than six months but which may extend to five years and shall also be liable to fine.
41
1960(2) SCR 89
42
Factsheet.
43
Sec 5. Procuring, inducing or taking person for the sake of prostitution: (1) Any person who- (a) procures or
attempts to procure a person, whether with or without his consent, for the purpose of prostitution; or (b) induces
a person to go from any place, with the intent that he may for the purpose of prostitution become the inmate of,
or frequent, a brothel; or (c) takes or attempts to take a person, or causes a person to be taken, from one place to
another with a view to his carrying on, or being brought up to carry on prostitution; or (d) causes or induces a
person to carry on prostitution; shall be punishable on conviction with rigorous imprisonment for a term of not
less than three years and not more than seven years and also with fine which may extend to two thousand
rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of
imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years:
43 Provided that if the person in respect of whom an offence committed under this subsection,-
(i) is a child, the punishment provided under this sub-section shall extend to rigorous
imprisonment for a term of not less than seven years but may extend to life; and
(ii) is a minor, the punishment provided under this sub-section shall extend to rigorous
imprisonment for a term of not less than seven years and not more than fourteen
years;]
8
of children from orphan home to third world of prostitution. Article 34 44 of U.N. Convention
on the Rights of the Child, 1989 (Ratified By The Government of India in 1992) provides
Government should protect children from all forms of sexual exploitation and abuse. It deals
with sale of children, child prostitution and child pornography. Under this convention Illegal
government has a duty to protect children from sexual exploitation. Article 3545 of U.N. trafficking is
not the
Convention on the Rights of the Child, 1989 (Ratified By The Government of India in 1992) discharge of
provides that govt. should take measures to make sure that children are not abducted, sold or official duty
trafficked. Whereas, in the instant case Government itself has indulged in Sexual
exploitation and trafficking of children, as SK is the part of the Government. Hence it is not
an act which she has done in the colour of her official duty.
Further, being a Member of Parliament she has committed an offence under Section 37746 of Offence u/s
the Indian Penal Code, 1860 as she was involved in unnatural sexual intercourse. The 377 of IPC
is not
principle of immunity protects all acts which the public servant has to perform in the exercise discharge of
of the functions of the Government. The purpose for which they are performed protects these official duty
acts from criminal prosecution. However, there is an exception. Where a criminal act is
performed under the colour of authority but which in reality is for the public servan‘s own
pleasure or benefit then such acts shall not be protected under the Doctrine of State immunity.
And so she cannot claim that the sanction must be obtained from the central government as SK cannot
no act of her can be said to have been committed under her official duty. In Om Prakash claim
sanction
Gupta v. State of U.P.,47 it was observed that a public servant committing criminal breach of
trust does not normally act in his public capacity as such and no sanction is required for such
an act.
44
Article 34 (Sexual exploitation): Governments should protect children from all forms of sexual exploitation
and abuse. This provision in the Convention is augmented by the Optional Protocol on the sale of children, child
prostitution and child pornography.
45
Article 35 (Abduction, sale and trafficking): The government should take all measures possible to make sure
that children are not abducted, sold or trafficked. This provision in the Convention is augmented by the Optional
Protocol on the sale of children, child prostitution and child pornography.
46
Sec. 377. Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with
any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration
is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
47
1957 SCR 423.
9
2. Whether in the light of present facts and circumstances, the act of media has
violated the privacy of SK and has resulted in defamation?
With regards to this issue Respondents most humbly submits before this Hon‘ble Court that
the act of media in broadcasting the three discs has not resulted in either violation of privacy
or defamation of SK. The submission is twofold. Firstly; SK cannot claim her Right to
Privacy. And Secondly; People has a Right to know about the antecedents of SK.
2.1. SK cannot claim her Right to Privacy -:
The right to privacy by itself has not been identified under the Constitution. As a concept it
may be too broad and moralistic to define it judicially. Whether right to privacy can be
claimed or has been infringed in a given case would depend on the facts of the said case. The
right to privacy is not, however absolute and reasonable restrictions can be placed thereon in Reasonable
48 restriction
public interest under Article 19(5) of the Constitution of India. Right to privacy is a part of
on Right to
the right to "life" and "personal liberty" enshrined under Article 21 of the Constitution. Once Privacy
the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right
cannot be curtailed "except according to procedure established by law". 49 And in the present
case the sting operation conducted by Patrika must be treated as a procedure established by
law.
In Sri Nithyananda Swami v. S.Arathi Rao,50 it was held that the petitioner cannot claim any
right to privacy because he is in a public domain and his right of privacy is very limited. In
R.K. Anand v. Registrar, Delhi High Court,51 this Hon‘ble Supreme Court rejected the
contention that the TV channel should have carried out the stings only after obtaining the
Media’s
permission of the trial court or the Chief Justice of the Delhi High Court and should have Right to
Freedom of
submitted the sting materials to the court before its telecast. Such a course would not be an Speech &
exercise in journalism but in that case the media would be acting as some sort of special Expression
vigilance agency for the court. Taking prior permission would be plainly an infraction of the
media‘s right of Freedom of Speech and Expression guaranteed under Article 19(1)(a)52 of
the Constitution of India. It is not our intent here to lay down any reformist agenda for the
48
M.P Jain, Indian Constitutional law, pg. 1127 ( Justice Ruma Pal & Samaraditya Pal, 6 th edition, 2012)
49
People's Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301
50
(2012) 7 Mad LJ 796.
51
(2009) 8 SCC 106.
52
Art 19. Protection of certain rights regarding freedom of speech etc (1) All citizens shall have the right (a) to
freedom of speech and expression;
10
media. Any attempt to control and regulate the media from outside is likely to cause more
harm than good. Therefore the interception of conversation though constitutes an invasion of
an individual right to privacy but the said right can be curtailed in accordance to procedure
validly established by law. Thus what the Court is required to see is that the procedure itself
must be fair, just and reasonable and non-arbitrary, fanciful or oppressive.53
The question whether interception of telephonic message/tapping of telephonic conversation

constitutes a serious invasion of an individual right to privacy was considered by this court on
two occasions. One in 37th year 1972 in the case of R.M. Malkani v. State of
Maharashtra,54 reported in, wherein it was held as under: "Article 21 contemplates procedure Reference of
cases under
established by law with regard to deprivation of life or personal liberty. The telephonic Right to
conversation of an innocent citizen will be protected by Courts against wrongful or Privacy
highhanded interference by tapping the conversation. The protection is not for the guilty
citizen against the efforts of the police to vindicate the law and prevent corruption of public
servants. It must not be understood that the Courts will tolerate safeguards for the protection
of the citizen to be imperiled by permitting the police to proceed by unlawful or irregular
methods. In the present case there is no unlawful or even irregular method in obtaining the
tape- recording of the conversation." In Maulana Mumtaz Ahmed Quasmi S/o Late Hakim
Faquirullah, Former Chairman, Himachal Pradesh v CNN - IBN 7, Global Broadcast News
Limited,55 a sting operation was done on the then Chairman, Himachal Pradesh, State Haj
Committee, receiving money as a bribe was conducted. A chairman filed a case of
defamation under section 499 I.P.C against the news channel. The court has observed that the SK cannot
accused have setup the defence of "truth" publication whereof was for "public good", and so claim Right
to Privacy
the telecast in question did not amount to defamation. In Suresh Kumar Koushal and another
v. NAZ Foundation,56 it was said by Supreme Court that right to privacy does not include the
right to commit any offence as defined under Section 377 IPC or any other section. In the
present case also the SK has received bribe and has committed the offence u/s 377 so she
cannot claim Right to privacy.
In Aniruddha Bahal v. State,57 the question before court was whether a citizen of this country
has a right to conduct sting operation to expose the corruption by using agent provocateurs
53
State Of Maharashtra v Bharat Shanti Lal Shah, (2008) 13 SCC 5
54
(1973) 1 SCC 471
55
Criminal Revision No. 222 of 2010 of HP High Court, decided on 07.05.2012 by V.K. Sharma J.
56
(2014) 1 SCC 1
57
(2010) 119 DRJ 102 : (2010) 172 DLT 268
11
and to bring to the knowledge of common man, corruption at high strata of society. In reply
Shiv Narayan Dhingra J. on behalf of court has said ―The Constitution [Part-IVA] lays down
certain fundamental duties for the citizens of this country and Article 51A(b)58 provides that
it is the duty of every citizen of India to cherish and follow the noble ideals which inspired
our national struggle for freedom. I consider that one of the noble ideals of our national
struggle for freedom was to have an independent and corruption free India. The other duties
assigned to the citizen by the Constitution is to uphold and protect the sovereignty, unity and
integrity of India and I consider that sovereignty, unity and integrity of this country cannot be
protected and safeguarded if the corruption is not removed from this country. Another duty of
every citizen is to defend the country and render national service when called upon to do so. I
consider that a country cannot be defended only by taking a gun and going to border at the
time of war. The country is to be defended day in and day out by being vigil and alert to the Fundamental
Right as well
needs and requirements of the country and to bring forth the corruption at higher level. The
as
duty under Article 51A(h)59 is to develop a spirit of inquiry and reforms. The duty of a citizen Fundamental
duty of Media
under Article 51A(j)60 is to strive towards excellence in all spheres so that the national to conduct
constantly rises to higher level of endeavor and achievements I consider that it is built-in Sting
operation
duties that every citizen must strive for a corruption free society and must expose the
corruption whenever it comes to his or her knowledge and try to remove corruption at all
levels more so at higher levels of management of the State. I consider that it is a fundamental
right of citizens of this country to have a clean incorruptible judiciary, legislature, executive
and other organs and in order to achieve this fundamental right, every citizen has a
corresponding duty to expose corruption wherever he finds it, whenever he finds it and to
expose it if possible with proof so that even if the State machinery does not act and does not
take action against the corrupt people when time comes people are able to take action either
by rejecting them as their representatives or by compelling the State by public awareness to
take action against them.‖ Hence it must be considered that the media was just exercising
their Fundamental Duty casted by Constitution.
58
Art. 51A. Fundamental duties: It shall be the duty of every citizen of India; (b) to cherish and follow the noble
ideals which inspired our national struggle for freedom;
59
Art. 51A. Fundamental duties: It shall be the duty of every citizen of India; (h) to develop the scientific
temper, humanism and the spirit of inquiry and reform;
60
Art. 51A. Fundamental duties: It shall be the duty of every citizen of India; (j) to strive towards excellence in
all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour
and achievement.
12
In R. Rajagopal v. State of Tamil Nadu,61 the Supreme Court has laid down certain
propositions defining the Right to privacy.
(1)The right to privacy is implicit in the right to life and liberty guaranteed to the citizens
of this country by Art. 21. It is a "right to be let alone". A citizen has a right to safeguard
the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and
education among other matters.
None can publish anything concerning the above matters without his consent whether
truthful or otherwise and whether laudatory or critical. If he does so, he would be
violating the right to privacy of the person concerned and would be liable in an action for
damages. Position may, however, be different, if a person voluntarily thrusts himself into
controversy or voluntarily invites or raises a controversy.
(2)The rule aforesaid is subject to the exception, that any publication concerning the
aforesaid aspects becomes unobjectionable if such publication is based upon public Public
officials
records including court records. This is for the reason that once a matter becomes a cannot file a
matter of public record, the right to privacy no longer subsists and it becomes a suit of
defamation
legitimate subject for comment by press and media among others. We are, however, of and cannot
the opinion that in the interests of decency Art. 19(2) an exception must be carved out to claim Right
to Privacy
this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like as well
offence should not further be subjected to the indignity of her name and the incident
being publicized in press/media.
(3)There is yet another exception to the rule in (1) above - indeed, this is not an
exception but an independent rule. In the case of public officials, it is obvious, right to
privacy, or for that matter, the remedy of action for damages is simply not available with
respect to their acts and conduct relevant to the discharge of their official duties. This is
so even where the publication is based upon facts and statements which are not true,
unless the official establishes that the publication was made (by the defendant) with
reckless disregard for truth. In such a case, it would be enough for the defendant
(member of the press or media) to prove that he acted after a reasonable verification of
the facts; it is not necessary for him to prove that what he has written is true.
61
AIR 1995 SC 264.
13
(4)So far as the Government, local authority and other organs and institutions exercising
governmental power are concerned, they cannot maintain a suit for damages for
defaming them.
In Tata Sons Limited v Workmen,62 it was said by court that the decision in Court on its own
motion v. States.63 does not lay down a universal rule that sting operation by a private person
or agency cannot be accepted in judicial proceedings. There are several instances where sting
operations have been made the basis of their decision by the courts.
In R.K. Anand v. Registrar, Delhi High Court,64 on June 30, 2007, a sting
operation conducted by a news channel showed R.K. Anand in conversation with
an eyewitness trying to negotiate with him the amount to be paid for retracting in court. On
August 21 2008, Delhi High Court convicted Anand for contempt of court. He was debarred
from practicing in Delhi for four months and also imposed a fine of Rs 2,000 each for
Reference of
obstructing the course of justice by trying to influence the witness. On July 29, 2009, the cases in
Supreme Court upheld the conviction and observed that a sting operation done by a TV news which
convention
channel, that exposed an alleged link between the witness and the defence lawyer, was in was held on
the because
public interest and cannot be termed as a case of trial by media. Just to protect himself from
of Sting
public he gave a legal notice to NDTV, its Chairman, Directors and a host of other staff Operation
asking them to stop any further telecasts of their BMW programme and to tender an
unconditional apology to him failing which he would take legal action against them inter alia
for damages amounting to rupees fifty crores. Later on he only found guilty. Similarly in the
instant case they have a case of defamation to protect themselves from public.
In Sidhartha Vashisht @ Manu Sharma v. state of N.C.T Delhi,65 popularly known as Jessica
lal murder case, the accused was convicted because of sting operation only. A trail court has
acquitted the accused because 200 witnesses were turn hostile. On those witnesses sting
operation was done by media and the case was again refer to high court and accused get
convicted from there and from Supreme Court.66
62
2013 (203) DLT 453
63
2008 (151) DLT 695
64
(2009) 8 SCC 106
65
(2010) 6 SCC 1
66
Jessica case : How evidence was destroyed, http://timesofindia.indiatimes.com/india/Jessica-case-How-
evidence-wasdestroyed/articleshow/2030065.cms, last seen on 30/8/2014
14
In A. K. Jain S/O P. R. Jain v. Government Of Nct Of Delhi,67 also due to sting operation
sting operations one at the Tihar Central Jail, and the other at the Department of Trade &
Taxes, Government of NCT of Delhi. were found taking bribe. Due to sting operation only
proper investigation took place.
In Rajat Prasad V. C.B.I.,68 due to sting operation, Dalip Singh Ju Dev, the then Union
Minister of State for Environment and Forest was found receiving illegal gratification from
two people because of this sting operation investigation was initiated against them and F.I.R
was not quashed by Supreme Court in this case. Due to Cobrapost sting operation it was
found that: HDFC, ICICI and Axis how these banks are involved in channeling huge amounts
of black money into the banking system as laundered white money. Employees of these
banks were caught on camera offering to convert black money into white money.69
In Tehelka Sting Operation West End, the BJP chief Bangaru Laxman was convicted. Reference of
Sting
Corruption in India‘s Defence ministry was found. Many arms dealers and defense ministry operation
officials were caught on tape accepting bribes. He was guilty of accepting money for making
recommendations to the Defence Ministry regarding contracts for supply of wares to the
Army.70 CNN-IBN carried out an undercover sting operation in 2008 to expose the cash-for-
votes scandal, in which the Sonia Gandhi led UPA allegedly bribed other party MPs to
survive a confidence vote in Parliament. Cash for votes‘ scandal really rocked the parliament
and was made certain through a sting operation by CNN-IBN, which showed on tape Amar
Singh aide giving money to a BJP MP.71
Online magazine Tehelka with journalist Ashish Khaitan as the undercover agent carried out
a sting operation titled ‗Operation Kalank‘ in Gujarat, wherein they secretly recorded on
camera confessions of various 2002 Gujarat riot accused along with three three Naroda Patiya
massacre accused boasting of their misdeeds. The CD worked as evidence in court against the
three accused in Naroda Patiya massacre.72
67
Decision by Central administrative tribunal, Principle bench, New Delhi on 31 st august 2009 by V.K. BALI J.
& RAMESH CHADRA J.
68
(2014) 6 SCC 495
69
Arun Thakur, Top 10 Sensational Cases of Sting Operations in India, available at http://topyaps.com/top-10-
sensational-cases-of-sting-operations-in-india, last seen on 3/9/2014
70
Tehelka sting case : Former BJP chief Bangaru Laxman, available at http://indiatoday.intoday.in/story/court-
decision-in-bangaru-laxman-graft-case/1/186200.html, last seen on 2/9/2014
71
Arun Thakur, Top 10 Sensational Cases of Sting Operations in India, available at http://topyaps.com/top-10-
sensational-cases-of-sting-operations-in-india, last seen on 3/9/2014
72
Ibid.
15
Due to India TV‘s casting couch expose sting operation it was found that actors Shakti
Kapoor and Aman Verma allegedly involved in seeking sexual favors for struggling actors.73
A young Bihari girl, Soumya Pratheek along with social activists Rachel Morgan and Manish
Swarnkar (all working for rescue and rehabilitation of women forced into prostitution) carried
out a sting operation to expose a women trafficking nexus in Forbesganj in Araria district of
Bihar. The sting showed on camera how girls were being forced into prostitution, which
forced the police to act and rescue about a dozen girls and arrest some pimps and other
involved in the nexus.74
If each and every person will start claiming the defense of Right to Privacy or defamation for
sting operation, then these types of offences will never get caught. The defense of defamation
is truth and the data broadcasted and produced before the court as evidences are true.
2.2 People has a Right to know about the antecedents of SK-:

Freedom of speech is the bulwark of democratic government. This freedom is essential for
the proper functioning of the democratic process. The freedom of speech and expression is
regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of Freedom of
liberties giving succour and protection to all other liberties. It has been truly said that it is the Speech
mother of all other liberties.75 Out of the several rights enumerated in clause (1) of Article 19,
the right in sub clause (a) is not merely a right to speech and expression but a right to
freedom of speech and expression.76
Democracy expects openness and openness is concomitant of a free society and the sunlight
is a best disinfectant.77 The right of the citizens to obtain information on matters relating to
the public acts flows from the Fundamental Right enshrined in Article 19(1)(a).78 In
Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Right to
Bengal,79 the Supreme Court reiterated the proposition that the Freedom of Speech and know
expression guaranteed by Art. 19(1)(a) includes the right to acquire information and to
disseminate the same. In Dinesh Trivedi, M.P. and others v. Union of India,80 the Supreme
Court dealt with the right to freedom of information and observed ―in modern constitutional
73
Ibid.
74
Ibid.
75
Report of the Second Press Comm., Vol. I, 34-35.
76
Dharma Dutt v. Union of India, (2004) 1 SCC 712.
77
Dinesh Trivedi, M.P. and others v. Union of India, (1997) 4 SCC 306.
78
PUCL v. Union of India, (2003) 4 SCC 399.
79
AIR 1995 SC 1236.
80
(1997) 4 SCC 306.
16
democracies, it is axiomatic that citizens have a right to know about the affairs of the
government which, having been elected by them, seek to formulate sound policies of
governance aimed at their welfare.‖ In State Of U.P v. Raj Narain,81 the Supreme Court has
held that Art. 19(1) (a) not only guarantees Freedom of Speech and Expression, it also
ensures and comprehends the right to receive information regarding matters of public
concern. The Supreme Court has underlined the significance of the right to know in a
democracy in these words ‗In a government of responsibility like ours, where all the agents of
the public must be responsible for their conduct, there can but few secrets. The people of this
country have a right to know every public act, everything, that is done in a public way, by
their public functionaries. They are entitled to know the particulars of every public
transaction in all its bearing. The right to know, which is derived from the concept of freedom
of speech, though not absolute, is a factor which should make one wary, when secrecy is
claimed for transactions which can, at any rate, have no repercussion on public security (2).
To cover with veil secrecy the common routine business, is not in the interest of the public.
Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of
parties and politics or personal self-interest or bureaucratic routine. The responsibility of
officials to explain and to justify their acts is the chief safeguard against oppression and
corruption.‘
SK in the present case was a Member of Parliament which is elected by the citizens of the
country.82 She was elected either directly or indirectly by the citizens and as the citizens has
casted their votes for her, they also has a right to know about the antecedents of her, and so
the argument that Patrika was not authorized to broadcast these data is frivolous. Citizens has
a Right to
In Tarun J. Tejpal & Anr. V. Jayalakshmi Jaitly83, court has said that ―Media plays a very know about
the
vital role in present times. ―Media has come to be known as the eyes, and the ears of the antecedents
people. Over the years, it has also become their brain and tongue. Freedom of the Media is an of SK as she
was a M.P
integral part of freedom of expression and essential requisite of democratic set up. The Media
is known as the fourth limb of a democratic system. Without commenting as to whether it is
right or wrong, the journalists deem it that it is integral part of their function to expose the
corruption by public servants etc.‖
81
1975 AIR SC 865.
82
Factsheet.
83
ILR (2008) 1 Del 35
17
The Courts are not really concerned with journalistic norms or how the mass media ‗behaves‘
in a given situation. Sting Operation is really a matter that falls within the domain of
journalists and broadcasters and their disciplinary bodies. The Courts come into the picture
only if there is an allegation of transgression of the law by the media.84 It is well settled that
once proceedings in Court have begun, the media has no role to play in the administration of
justice.85 But, in the instant case, the media has not conducted the sting operation, which was
under the domain of Patrika, after the proceedings were started but it has helped for the
proceeding to start.
84
Court on its own motion v State and Ors, 2008 (151) DLT 695.
85
Court on its own motion v State and Ors, 2008 (151) DLT 695. Also see, M.P. Lohia v. State of West
Bengal, (2005) 2 SCC 686.
18
-PRAYER- -MEMORIAL ON BEHALF OF RESPONDENT-
PRAYER
Wherefore in the light of arguments advanced and authorities cited, the Respondent
humbly submits that the Hon‘ble Court may be pleased to adjudge and declare that:
TO HOLD
1. That the decision of High Court was correct.
2. That the act of Patrika has not resulted in the either violation Right to
Privacy or Defamation of SK.
TO SET ASIDE
1. Special Leave Petition.
MISCELLANEOUS
Any other order as it deems fit in the interest of justice, equity and good
conscience.
For This Act of Kindness, the Respondent Shall Duty Bound Forever Pray.
Sd/-
(Counsel for the Respondent)
XVI

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Respondent Memo

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IN THE HON’BLE SUPREME COURT OF INDIA

APPEAL NO. _____ OF 2014

SK & JD ____________________ Appellant

BACHPAN & Ors. ____________________ Respondent

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

Most Respectfully Submitted to the Hon’ble

4th FYLC RANKA NATIONAL MOOT COURT COMPETITION – 2014

AIR All India Reporter

Cr.P.C Criminal Procedure Code, 1973

CJI Chief Justice of India

H.P. Himachal Pradesh

IEA India Evidence Act, 1872

IPC India Penal Code, 1860

SCC Supreme Court Cases

U.P Uttar Pradesh

UOI Union of India

The Constitution of India, 1950

Judicial Decisions Citation Footnote No.

Dharambir v. CBI (2008) DLT 289 9

Thol.Thiruma Valavan v. State Of Tamil Decision by the Madurai

LexisNexis Butterworths Wadhuta

K. I. VIBHUTE (2004), Criminal Justice, Eastern book company

R. DAYAL‘S (2013) Commentary On Sexual Offences, 3rd Edition . Premier publishing

SARKARIA S K, Indian Penal Code, Vol.-1, 10th Edition, LexisNexis, ButterWorths,

facts and laws on which the claims are based.

PUBLIC INTEREST LITIGATION

JUDGMENT OF HIGH COURT

SPECIAL LEAVE PETITION FILED

Decision of High Court was correct-

Respondent Act has not violated the Privacy of SK;-

1.1. There are prima facie allegations against the appellants-:

1.2. The appellants are liable to pay cost-cum-compensation to the victims.

2.1. SK cannot claim her Right to Privacy -:

The question whether interception of telephonic message/tapping of telephonic conversation

2.2 People has a Right to know about the antecedents of SK-:

1. That the decision of High Court was correct.

Privacy or Defamation of SK.

1. Special Leave Petition.

(Counsel for the Respondent)

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