MOOT MEMORIAL ASSIGNMENT 1: RAHUL PATHAK

NALANDA LAW COLLEGE ACADEMIC YEAR 2022-2023

RAHUL PATHAK: 3RD YEAR LL.B: ROLL NO. _____

IN THE HON’BLE SUPREME COURT OF INDIA

(CRIMINAL APPEAL NO._______/2006)

IN THE MATTER OF: NETWORK AGAINST GENDER BIAS (NAG B) V. AMRIT SINGH

NETWORK AGAINST GENDER BIAS (NAG B) ……

APPELLANT

Versus

THE STATE ……
RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT

COUNSEL FOR RESPONDENT

 TABLE OF CONTENTS

TABLE OF CONTENTS .………………………………….. 2

TABLE OF CITED AUTHORITIES ..…...……………………………… 3

STATEMENT OF JURISDICTION ……………………………………. 5

STATEMENT OF FACTS ..…………………………………… 6

STATEMENT OF ISSUES …………………………………….. 8

SUMMARY OF PLEADINGS ..……………………………………. 9

WRITTEN PLEADINGS ……………………………………… 10

PRAYER ……………………………………… 15

MEMORIAL FOR THE RESPONDENT Page 2 of

16
RAHUL PATHAK, 3 Year LLB (Roll No. _____)
Nalanda Law College Academic year 2022-2023

TABLE OF CITED AUTHORITIES

Cases
Abhyanand Mishra v State of Bihar, AIR 1961 SC 1698
Aher Raja Khuna v. State of Saurashtra, AIR 1956 SC 217
AG v. Leveller Magazine Ltd. [1979] AC 440
AG v. Leveller Magazine Ltd. [1979] AC 440, p. 449
Attorney General v. BBC (1981) 3 All ER 161
Bavaji: AIR 1950 Mad 44
Court On Its Own Motion vs State,146 (2008) DLT 429
Gisborne Herald Co. Ltd. V. Solicitor General, 1995 (3) NZLR 563 (CA)
Hargun Sunder Das Godeja v. State of Maharashtra AIR 1970 SC 1514
Hari Das v. Usha Rani Banik: AIR 2007 SC 2688
Her Majesty's Attorney-General and MGN Limited (News Group Newspapers Limited [2011]
EWHC 2074 (Admin)
Hinch v. Attorney General (1987) 164 CLR 26-27
Jacobson v. United States, 503 U.S. 540 (1992)
Khedu Mohan v. State of Bihar: AIR 1971 SC 66
MAJW v R [2009] NSWCCA
P.C Sen v. Unknown: AIR 1970 SC 1821
P.C. Sen In Re AIR 1970 SC 1821
Province of Bohar v. Bhagwat Prasad AIR 1949 Pat 307
Regina v Loosely [2001] UKHL 53
Regina v Shannon [2001] 1 WLR
R v. Yakoob (1981) 72 Cr App R 313
R. v. Editor of New Statesman, ex parte DPP (1928) 44 TLR 301
R. v. Gray [1900] 2 Q.B.D. 36
R. V. Maqsud Ali [1975] 2 All E.R. 46
R. V. Maqsud Ali [1975] 2 All E.R. 464
R. v. Robson [1972] 2 All E.R. 699
Ram Singh v. Col. Ram Singh AIR 1986 SC 3
Re Oliver 333 U.S. 257, 273(1948)

MEMORIAL FOR THE RESPONDENT Page 3 of 16

RAHUL PATHAK, 3 Year LLB (Roll No. _____)
Nalanda Law College Academic year 2022-2023

Regina v Murray(1987) 11 NSWLR 12

Reliance Petrochemicals Ltd. v. Proprietors of Indian Express 1988 (4) SCC 592
Shankarlal Garasilal Dixit v. State of Maharashtra: AIR 1982 SC 1157
Sheppard v. Maxwell, 384 US 333
Sherman v. United States (356 U.S. 369 (1958)
Sherman v. United States , 356 U.S. 369 (1958)
Smale v R (2007) NSWCCA 328
Sorrells v. United States, 287 U.S. 435 (1932)
South v R [2007] NSWCCA
State of Bihar v. Jagdish Narayan AIR 1959 pat 376
State of Madhya Pradesh v Narayan Singh: AIR 1989 SC 1789
Teixeira de Castro v. Portugal (1998) 28 ECHR 101
The King v. MacFarlane; ex parte O’ Flanaghan and O’ Kelly 1923 32 (CLR) 518
Uma Shankar v. State of Uttar Pradesh AIR 1979 SC 745
United States v Russel, 411 U.S. 423 (1973)
Yusufalli Esmail Nagree v. State of Maharashtra AIR 1968 SC 147
Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC147

Other Authorities

Borrie and Lowe: Law of Contempt, 2nd Ed, 1983

Criminal Law Review 2006-“The Problem of private entrapment by Kate Hoffmeyr.”
JWC Turner, ‘Attempt to Commit Offences’, in Modern Approach to Criminal Law
Murphy on Evidence, 1997 Edition
New Zealand Law Commission, Juries in Criminal Trials (NZLC PP 37)
Rusell on Crime, 2010th Edition
The Indian Police Journal
The Nature of The Judicial Process by Benjamin N. Cardozo
The Road to Justice by Lord Denning

Treatises

MEMORIAL FOR THE RESPONDENT Page 4 of 16

RAHUL PATHAK, 3 Year LLB (Roll No. _____)
Nalanda Law College Academic year 2022-2023

Universal Declaration of Human Rights

STATEMENT OF JURISDICTION

That the Respondent humbly submits the reply against the review petition filed by Network Against
Gender Bias’ (NAG B) against the impugned judgement delivered by this Hon’ble Court on 10-11-2006
under Article 137 of the Constitution of India.

MEMORIAL FOR THE RESPONDENT Page 5 of 16

RAHUL PATHAK, 3 Year LLB (Roll No. _____)
Nalanda Law College Academic year 2022-2023

STATEMENT OF FACTS

For the sake of brevity and convenience of the Hon`ble Court the facts of the present case are summarized as
follows:
BACKGROUND

A. That on 3.11.2003 in the evening, Raj Preet Kaur @ Guddi, who was about eight years old, and a student of
IInd Standard went to the house of her classmate and cousin, Amarpreet Kaur. At about 5.00 p.m., she left
from there to return to her house. She was accompanied to some distance by Amarpreet. When she crossed
pakka water house, Amarpreet left her on her own. Raj Preet Kaur was last seen with Amrit Singh, a 30
year old neighbour. She was seen walking holding his finger. When Raj Preet Kaur did not reach her house,
search was carried on. Some persons then found her dead body in the agricultural field belonging to Amrit
Singh situated in front of his house.

B. That the dead body was found near a tree and some cotton crop was found near the dead body. Some dry
leaves were found in her hair. In her hand some strands of human hair were also noticed. It was fully
smeared with blood. There was bleeding from vulva and the legs were also stained with blood. Body was in
state of rigor mortis. There were multiple marks of contusions and abrasions on the neck. Face also had
some abrasions. Abrasions over elbows and knuckle were present. There were impressions of teeth on the
lips. These were all ante mortem in nature.

C. That although external injuries were found on the neck which were said to be the cause of death of the
deceased, according to the doctor, the death took place because of loss of blood. It was stated by him:-

"20% loss of blood may cause shock and death. Normally in a child of 6-7 years age there may be about 2
litres blood in body. On examination of injuries it was found that more bleeding from the injury has caused
the death. In this case more than half litre blood had oozed..."

D. That the Amarjit was prosecuted for rape and murder. The lower court convicted him on both the counts
and sentenced him to death penalty which was confirmed by the High Court. On appeal, the Supreme Court
upheld the conviction but reduced the sentence to life imprisonment.

E. That The Supreme Court noted as follows:-

Appellant, a neighbour and known to her was a person of trust. She was seen to be holding Appellant's
finger. It is clear that she was allured by Appellant to accompany him to his own field which was near his
house.... Offence of rape took place on an agricultural field. She might have suffered a lot of pain. She
might have resisted also. She might have been gagged. Possibilities of some assault on her person cannot be
ruled out. It would, however, be improper to hold that he killed her intentionally.... The death occurred not
as a result of strangulation but because of excessive bleeding. The death occurred, therefore, as a
consequence of and not because of any specific overt act on the part of Appellant.

MEMORIAL FOR THE RESPONDENT Page 6 of 16

RAHUL PATHAK, 3 Year LLB (Roll No. _____)
Nalanda Law College Academic year 2022-2023

F. Imposition of death penalty in a case of this nature, in our opinion, was, thus, improper. Even otherwise, it
cannot be said to be a rarest of rare cases. The manner in which the deceased was raped may be brutal but it
could have been a momentary lapse on the part of Appellant, seeing a lonely girl at a secluded place. He
had no pre-meditation for commission of the offence. The offence may look heinous, but under no
circumstances, it can be said to be a rarest of rare cases.

G. The judgement was delivered by the Supreme Court on 10-11-2006.

H. The review petition has been filed by the appellant on 11-12-2006.

MEMORIAL FOR THE RESPONDENT Page 7 of 16

RAHUL PATHAK, 3 Year LLB (Roll No. _____)
Nalanda Law College Academic year 2022-2023

STATEMENT OF ISSUES

THE APPELLANT RESPECTFULLY ASKS THE HON’BLE SUPREME COURT, THE

FOLLOWING QUESTIONS:

 ISSUE – I
WHETHER THE SUPREME COURT CAN ACCEPT A REVIEW PETITION FILED AFTER 30
DAYS OF THE PRONOUNCEMENT OF JUDGMENT OR ORDER ?

 ISSUE – II

WHETHER THE SUPREME COURT CAN ACCEPT A REVIEW PETITION FILED BY

WOMEN ORGNIZATIONS WHO IS NOT AN AGGRIEVED PARTY AND NOT BY
STATE/AGGRIEVED PARTY ?

 ISSUE- III

WHETHER THERE IS AN ERROR APPARENT ON THE FACE OF THE RECORD IN

JUDGEMENT OF THIS COURT DELIVERED ON 10.11.2006 ?

 ISSUE- IV

WHETHER IT IS A RARE OF THE RAREST CASE TO AWARD DEATH SENTENCE TO

THE ACCUSED ON THE FACT AND EVIDENCES ON RECORD ?

MEMORIAL FOR THE RESPONDENT Page 8 of 16

RAHUL PATHAK, 3 Year LLB (Roll No. _____)
Nalanda Law College Academic year 2022-2023

SUMMARY O F PLEADINGS

I. THAT THIS COURT MAY NOT ACCEPT A REVIEW PETITION FILED AFTER 30
DAYS OF THE PRONOUNCEMENT OF JUDGMENT OR ORDER

A) That the review petition is not maintainable as the 30 days have elapsed after the
pronouncement of judgement:

II. THAT THIS COURT MAY NOT ACCEPT A REVIEW PETITION FILED BY WOMEN
ORGNIZATIONS WHO IS NOT AN AGGRIEVED PARTY AND NOT BY
STATE/VICTIM

A) That the review petition is not maintainable as the appellant is third party/stranger:

III. THAT THERE IS NO ERROR APPARENT ON THE FACE OF THE RECORD IN

JUDGEMENT OF THIS COURT DELIVERED ON 10.11.2006.

A) That as per guidelines of Supreme Court if the view adopted by the Court in the original
judgment is a possible view having regard to what the record states, it is difficult to
hold that there is an error apparent on the face of the record.

B) That there is no material error, manifest on the face of the order, undermines its
soundness or results in miscarriage of justice.

IV. THAT IT IS NOT A RARE OF THE RAREST CASE TO AWARD DEATH PENALTY TO
THE ACCUSED ON THE FACT AND EVIDENCES ON RECORD

A) That this is not a Rare of the Rarest Case.

B) That there is no special reason exists in this case for awarding death sentence.

C) That life sentence is the rule and the death sentence is the exception.

MEMORIAL FOR THE RESPONDENT Page 9 of 16

RAHUL PATHAK, 3 Year LLB (Roll No. _____)
 Nalanda Law College Academic year 2022-2023

WRITTEN PLEADINGS

I. THAT THIS COURT MAY NOT ACCEPT A REVIEW PETITION FILED AFTER 30 DAYS
OF THE PRONOUNCEMENT OF JUDGMENT OR ORDER

(A) That the review petition is not maintainable as the 30 days have elapsed after the pronouncement
of judgment:

The Constitution of India provides for Article 137 for Review of its own Judgments and remove any
'wrongs' that might have crept in the Judgments. The said Article 137 reads as under:

"137. Review of judgments or orders by the Supreme Court subject to the provisions of any law made
by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any
judgment pronounced or order made by it."

This power is however subject to the Rules made by the Supreme Court under Article 145, as well as
the provisions of any law enacted by parliament.

Further, as per the Supreme Court Rules, 1966 (XLVIII.2) a review Petition must be filed within 30
days from the judgment or order of which review is sought and must be placed before the same Bench
which had delivered the decision.

In the present case, order by Hon’ble Court was delivered on 10-11-2006 and the review petition has
been filed by Network against Gender Bias (NAG B) on 11-12-2006. Hence, review petition by the
women organization is not maintainable before this Hon’ble Court in the present criminal case as the
limitation for filing a review petition has expired.

MEMORIAL FOR THE RESPONDENT Page 10 of 16

RAHUL PATHAK, 3 Year LLB (Roll No. _____)
 Nalanda Law College Academic year 2022-2023

II. THAT THIS COURT MAY NOT ACCEPT A REVIEW PETITION FILED BY WOMEN
ORGNIZATIONS WHO IS NOT AN AGGRIEVED PARTY AND NOT BY STATE/VICTIM

(A) That the review petition is not maintainable as the appellant is third party/stranger:

Regarding the system of administration of criminal justice in India, this Court in Thakur Ram and
Others v. The State of Bihar, while examining the right of a third party to invoke the revisional
jurisdiction under the Code of 1898, had observed as under:

“The criminal law is not to be used as an instrument of wrecking private vengeance by an aggrieved
party against the person who, according to that party, had caused injury to it. Barring a few
exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the
custodian of the social interests of the community at large and so it is for the State to take all the steps
necessary for bringing the person who has acted against the social interests of the community to
book.”

In Panchhi and Others v. State of U.P., this Court have refused leave to the National Commission for
Women to intervene in an appeal before this Court wherein a young mother was facing execution of
the capital sentence imposed on her on the ground that the National Commission for Women or for
that matter any other organization cannot have locus standi in a criminal case.

This Court has also been slow in approving third party intervention in criminal proceedings on
grounds of larger public interest. In Janta Dal v. H.S. Chowdhary and Others, the public interest
litigation petitioner was held to have no locus to bring a public interest litigation seeking certain
directions in a matter of issuance of a letter of rogatory/request to the Swiss Government in an
investigation that was then pending in what came to be popularly known as the Bofors case.
Similarly, in Simranjit Singh Mann v. Union of India and Anr. [5] this Court had declined leave to the
President of a recognized political party, namely, Akali Dal (M) to challenge, under Article 32of the
Constitution, the conviction and sentence of the accused found guilty of the offence under Section
302 IPC. The view taken by this Court in Simranjit Singh Mann (supra) seems to be based on the fact
that petitioner before this Court was a total stranger to the offence committed by the accused whereas
in Janta Dal (supra) the public interest litigation petitioner was found to have a personal and private
interest in the matter. [para 119 of the Report in Janta Dal (supra)].

In the present case, the appellant is a women organization is third party and stranger to the case. The
cause of action has not been arisen directly or indirectly against the appellant. The State is the party in
criminal cases and hence review petition by a women organization is not maintainable before this
Hon’ble Court in the present criminal case.

MEMORIAL FOR THE RESPONDENT Page 11 of 16

RAHUL PATHAK, 3 Year LLB (Roll No. _____)
 Nalanda Law College Academic year 2022-2023

III. THAT THERE IS NO ERROR APPARENT ON THE FACE OF THE RECORD IN

JUDGEMENT OF THIS COURT DELIVERED ON 10.11.2006.

In Criminal Jurisprudence, Burden of proof and a very high standard of proof is required on the part
of prosecution. It is a principle of Criminal law that conviction of serious crime should depend upon
proof that ‘Actus Reus’ was accompanied by ‘Mens Rea’ 1. In a criminal proceeding, review is
permissible on the ground of an error apparent on the face of the record 2. A review proceeding cannot
be equated with the original hearing of the case.

A) That as per guidelines of Supreme Court if the view adopted by the Court in the original judgment
is a possible view having regard to what the record states, it is difficult to hold that there is an error
apparent on the face of the record.

It is well-settled that a party is not entitled to seek a review of a judgment delivered by this Court
merely' for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a
judgment pronounced by the Court is final, and departure from that principle is justified only when
circumstances of a substantial and compelling character make it necessary to do so 3. In a criminal
proceeding an application for review is entertained only on the ground of an error apparent on the
face of the record4. But whatever the nature of the proceeding, it is beyond dispute that a review
proceeding cannot be equated with the original hearing of the case, and the finality of the judgment
delivered by the Court will not be reconsidered except "where a glaring omission or patent mistake or
like grave error has crept in earlier by judicial fallibility"5.

Such an error exists if of two or more views canvassed on the point it is possible to hold that the
controversy could be said to admit of only one of them. If the view adopted by the Court in the
original judgment is a possible view having regard to what the record states, it is difficult to hold that
there is an error apparent on the face of the record. In the present judgment of Supreme Court, there is
only one view and the same has been adopted by this Hon’ble Court in the original judgment and
hence it cannot be said that there is any error apparent on the face of the said judgment. The power of
review can be exercised for correction of a mistake but not to substitute a view. The mere possibility
of two views on the subject is not a ground for review6.

B) That there is no material error, manifest on the face of the order, undermines its soundness or
results in miscarriage of justice.

1. Rusell on Crime, 2010th Edition

2. M/s JK Northern India Caterers (India) Ltd v. Lt Governor of Delhi, (1980) 2 SCC 167
3. Sajjan Singh v. State of Rajasthan
4. Order. 40 Rule 1, Supreme Court Rules, 1966
5. Sow Chandra Kante v. Sheikh Habib
6. Lily Thomas and Ors v. UOI & ors, (2000) 6 SCC 224

MEMORIAL FOR THE RESPONDENT Page 12 of 16

RAHUL PATHAK, 3 Year LLB (Roll No. _____)
Nalanda Law College Academic year 2022-2023

Review of the earlier order cannot be done unless the court is satisfied that material error, manifest on
the face of the order, undermines its soundness or results in miscarriage of justice. This Court has
already held as under7:

“A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any
feeling that the party has been hurt without being heard. But we cannot review our earlier order unless
satisfied that material error, manifest on the face of the order, undermines its soundness or results in
miscarriage of justice.
In Sow Chandra Kante v. Sheikh Habib this Court observed:

A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring
omission or patent mistake or like grave error has crept in earlier by judicial fallibility....

Error contemplated under the rule must be such which is apparent on the face of the record and not an
error which has to be fished out and searched. It must be an error of inadvertence6.

The present stage is not a virgin ground but review of an earlier order which has the normal feature of
finality. This case does not fall under this category as there is no material error being sought for
review.

7. Col Avtar Singh Sekhon v. UOI, 1980 (Supra) SCC 562

MEMORIAL FOR THE RESPONDENT Page 13 of 16

RAHUL PATHAK, 3 Year LLB (Roll No. _____)
 Nalanda Law College Academic year 2022-2023

IV. THAT IT IS NOT A RARE OF THE RAREST CASE TO AWARD DEATH PENALTY TO
THE ACCUSED ON THE FACT AND EVIDENCES ON RECORD

IV. THAT DEATH PENALTY CAN BE AVOIDED IN THE PRESENT CASE?

A) That life sentence is the rule and the death sentence is the exception.
In India, death penalty is prescribed for murder, gang robbery with murder, abetting the suicide of a
child or insane person, waging war against the government and abetting mutiny by a member of the
armed forces. Capital punishment is also awarded under some anti-terror laws for those convicted of
terrorist activities.

Generally, courts award life imprisonment to convicts in a murder case. Only in “rarest of rare” cases,
murder convicts are given death penalty. Death sentence is imposed on the convict only when the
court comes to the conclusion that life imprisonment is inadequate having regard to the facts and
circumstances of the case.

In 1980, in the Bachan Singh case, the Supreme Court propounded the “rarest of rare” doctrine and
since then, life sentence is the rule and the death sentence the exception. There is no statutory
definition of “rarest of rare”. It depends upon facts and circumstances of a particular case, brutality of
the crime, conduct of the offender, previous history of his involvement in crime, chances of reforming
and integrating him into the society etc. Supre Court in this case said that “Death penalty should be
imposed when collective conscience of the society is so shocked that it will expect the holders of the
judicial power centre to inflict death penalty irrespective of their personal opinion as regards
desirability of otherwise of retaining death penalty”.

The generally applied test while sentencing a convict to death is whether the survival of an orderly
society demands extinction of life of the person who has committed the offence and whether failure to
impose death sentence on him would bring to naught the sentence of death provided under Section
302 of IPC. Pre-planned, brutal, cold-blooded and sordid nature of a crime, without giving any
chance to the victim, are generally taken into account to decide whether a particular case falls within
the parameters of “rarest of rare”.

The crime has to be viewed from various angles – manner of commission of murder, motive for
commission of murder, anti-social or socially abhorrent nature of crime and magnitude and
personality of victim of murder.

It is pertinent to mention that the Dhananjoy Chatterjee (2004) who was hanged for the murder and
rape of a 14-year old girl in Kolkata, was the country’s first execution since April 27, 1995, when
Auto Shankar, a serial killer, was executed in Salem, Tamil Nadu. Also, this Court did not inclined to
award death sentence to the convicts in the Graham Staines, Jessica Lal and Priyadarshini Mattoo
murder cases on the ground that these did not fall within the category of “rarest of rare”.

The present case is also not considered by this Court in his judgment as ‘rarest of rare’. Hence, the
justice ends with life imprisonment in this case.

MEMORIAL FOR THE RESPONDENT Page 14 of 16

RAHUL PATHAK, 3 Year LLB (Roll No. _____)
Nalanda Law College Academic year 2022-2023

B) That there is no special reason exists in this case for awarding death sentence.
Section 354(3) of the Criminal Procedure Code (CrPC), which was added to the Code in 1973,
requires a judge to give “special reasons” for awarding death sentences. Capital punishment can be
inflicted only in gravest cases of extreme culpability and in choosing the sentence the condition of the
convict is also to be taken into account.

This court has found that there is no any special reasons exist in this case for awarding death sentence
to the accused.

MEMORIAL FOR THE RESPONDENT Page 15 of 16

RAHUL PATHAK, 3 Year LLB (Roll No. _____)
Nalanda Law College Academic year 2022-2023

PRAYER

The counsel for the Respondent humbly submits before the Hon’ble court

WHEREFORE, in light of issues raised, arguments advanced and authorities cited it is most humbly
submitted and respectfully requested that:
A) This court may dismiss the review petition filed by ‘Network Against Gender Bias’ (NAG B).
B) The Court may also be pleased to pass any other order, which this Hon’ble Court may deem fit in
the interest of JUSTICE, EQUITY AND GOOD CONSCIENCE.

ALL OF THIS IS RESPECTFULLY SUBMITTED AND FOR THIS THE RESPONDENT

SHALL FOREVER PRAY

COUNSEL FOR THE RESPONDENT

MEMORIAL FOR THE RESPONDENT Page 16 of 16

RAHUL PATHAK, 3 Year LLB (Roll No. _____)