Shri Vaishnav Vidyapeeth Vishwavidyalya, Indore National

Moot Court Competition, 2023

TEAM CODE: NMCC08

BEFORE THE HON’BLE SUPREME COURT OF INDIA

S.P.L. (Civil) No.:____/2023

SPECIAL LEAVE PETITION
(Under Article 136 of the Constitution of India)

Railway Board and Ors. V. Radhika

MEMORIAL ON BEHALF OF THE APPELLANT

 Shri Vaishnav Vidyapeeth Vishwavidyalya, Indore National Moot Court Competition, 2023

TABLE OF CONTENTS
LIST OF ABBREVIATIONS ................................................................................................ 2

INDEX OF AUTHORITIES ................................................................................................. 3

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

STATEMENT OF FACTS ..................................................................................................... 6

SUMMARY OF ARGUMENTS ........................................................................................... 9

ARGUMENTS ADVANCED .............................................................................................. 10

Issue I: Whether Kinzi Maiomi, Who Is A Foreigner And Not An Indian Citizen
Entitled To Relief, Compensation, And Dignity Under The Constitution Of India? .. 10
1.1. The remedy sought by the respondent under the constitution is extraordinary. ... 10

1.2. The relief for the Respondent lies in private law and not under public law. ........ 11

Issue II: Whether The Commission Of An Offence Like Rape By The Person
Concerned, Would Make The Railways Or The Union Of India Liable To Pay
Compensation To The Victim Of The Offence On The Ground Of Vicarious Liability?
........................................................................................................................................ 13
2.1 The Commission of the offence was an individual act rather than an official one.
13

2.2 Close Connection test by Salmond. .................................................................... 14

2.3 An illegal act by the employee does not make the employer liable. .................... 16

Issue III: Whether The Accused Salil Can Be Treated As An Adult For The Offence Of
Gang Rape?.................................................................................................................... 16
3.1. The provisions under Section 15 & 18(3) of the Juvenile Justice Act is
unconstitutional. ........................................................................................................... 16

3.2. Lack of mental maturity of the accused .............................................................. 18

PRAYER ............................................................................................................................. 21

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MEMORIAL ON BEHALF OF THE APPELLANT
 Shri Vaishnav Vidyapeeth Vishwavidyalya, Indore National Moot Court Competition, 2023

LIST OF ABBREVIATIONS

Abbreviations Term
& And
Art. Article
Hon’ble Honourable
SC Supreme Court
PIL Public Interest Litigation
AIR All India Report
SCC Supreme Court Cases
S. Section
UNCRC United Nations Convention on Rights of
Children
Ors. Others
v. Versus
r/w Read with
Anr. Another
UOI Union of India
Govt. Government
Para. Paragraph
i.e,. That is
US United States
No. Number

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MEMORIAL ON BEHALF OF THE APPELLANT
 Shri Vaishnav Vidyapeeth Vishwavidyalya, Indore National Moot Court Competition, 2023

INDEX OF AUTHORITIES

Statutes

Indian Penal Code, 1860 ................................................................................................ 11, 20

Juvenile Justice Act, 2000 ................................................................................................... 20
The Code of Criminal Procedure, 1973 ............................................................................... 11

Treatises

United Nations, Committee on the Rights of the Child (CRC), ............................................ 19

Indian Cases

A.P. Pollution Control Board II v. M.V. Nayudu ................................................................... 17

Ankush Shivaji Gaikwad v. State of Maharashtra ................................................................ 11
Avinder Singh v. State of Punjab.......................................................................................... 17
Barun Chandra Thakur v. Bholu ......................................................................................... 20
Delhi Cloth & General Mills Co. Ltd. v. CTO Jaipur........................................................... 10
Harikrishna and State of Haryana v. Sukhbir Singh ............................................................. 12
in Sumit Kumar Shaw and Ors. v. State of Jharkhand and Ors ............................................ 12
Raghid Ahmed v. Municipal Board, Kairana ....................................................................... 10
Shilpa Mittal v. State of NCT Delhi and Ors ....................................................................... 20
Sitaram Motilal Kalal vs Santanuprasad Jaishankar Bhatt .................................................. 14
the State of Maharashtra and Ors v. Kanchanmala Vijaysingh Shirke and Ors .................... 14
Titaghur Paper Mills v. State of Orissa............................................................................... 10
Union of India v. T. R Verma .............................................................................................. 10

International Cases

Bazley v. Curry ................................................................................................................... 15

Children's Rights in Juvenile Justice .............................................................................. 13, 19
Graham v. Florida .............................................................................................................. 19
Industrial Com. v. Enyeart ................................................................................................... 16
Larry Deterts v. Times Publishing Company et al ................................................................ 15
Roper v. Simmons................................................................................................................ 19
Wolverhampton New Water Works Co. v. Hawkesford ......................................................... 11

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MEMORIAL ON BEHALF OF THE APPELLANT
 Shri Vaishnav Vidyapeeth Vishwavidyalya, Indore National Moot Court Competition, 2023

Reports & Articles

Abhinav Benjamin and Ananth Kamath M, Juvenile Injustice : A Critique on the

Constitutionality of Deeming 16-18 Year Old Juveniles as Adults under the Juvenile Justice
(Care and Protection of Children) Act, 2015.CNLU ......................................................... 17
B.B. Pande, “Stilling the Turbulent Juvenile Justice Waters: The Supreme Court's Precedented
Response to an Unprecedented Challenge in Salil Bali v. Union of India” ........................ 18
Beyer, “Recognizing the Child in the Delinquent”, Kentucky Children's Rights Journal, Vol.
VII, No. 1, Spring 1999, 45, 55 ........................................................................................ 18
Kumar Askand Pandey, Juvenile Delinquency and the Juvenile Justice (Care and Protection of
Children) Act, 2015: A Critique, 7 RMLNLUJ (2015) 54 Brain Science .......................... 18
MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice.
(2006, September), Network overview: A century of change in juvenile justice (p. 2),
Philadelphia ..................................................................................................................... 18
Report of The Committee on Amendments to Criminal Law, Justice Verma Committee ...... 18
The Juvenile Justice (Care and Protection of Children) Bill, 2014, Report No. 264,
Rajya Sabha (2015) ......................................................................................................... 17

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MEMORIAL ON BEHALF OF THE APPELLANT
 Shri Vaishnav Vidyapeeth Vishwavidyalya, Indore National Moot Court Competition, 2023

STATEMENT OF JURISDICTION

The counsel for the Appellants most respectfully showeth in the case Radhika v. Railway Board
and Ors. the Petitioner has approached this Hon'ble Court under Article 136 of the Constitution
of India.

The Hon’ble Supreme Court of India has jurisdiction to try, entertain and dispose of the present
case by article 136 of the Constitution of India, which reads as,

“136. Special leave to appeal by the Supreme Court.

1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory of
India.
2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces. “

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MEMORIAL ON BEHALF OF THE APPELLANT
 Shri Vaishnav Vidyapeeth Vishwavidyalya, Indore National Moot Court Competition, 2023

STATEMENT OF FACTS

1. Kinzi Maiomi, a citizen of Bhutan, who came to India on official duty in November 2022.
To visit Vaishno Devi, she arrived at Assam on 24 th December 2022 and stayed at a hotel
at Baba Street near Tahur Police Station.
2. She arrived at Assam railway station on 1st Jan 2023 at about 14.00 hours. Her purpose
was to catch the Assam – Jammu Express departing at 23:00 hours, as she intended to visit
Ajmer Sharif. However, her ticket was on the waitlist, so she approached a Train Ticket
Examiner at the station in hopes of securing a confirmed berth.
3. At about 17.00 hours on 1st January 2023 two persons, one named Rinku, a tout who posed
himself as a very influential person on the Railway and another one named Kallu a railway
ticket broker having good acquaintance with some of the Railway Staff of Assam Station
approached her, took her ticket and returned the same after confirming the reservation in
Coach No. S-3 (Berth No.17) of Assam–Jammu Express.
4. Around 20:00 hours Kallu returned to her accompanied by a boy named Rahi. He informed
her that if she wished to have dinner for the night, she should accompany the boy to a
restaurant. Consequently, at approximately 21:00 hours, she followed Rahi to a nearby
eatery and had her meal. However, shortly after finishing her meal, she experienced
vomiting and returned to the Ladies’ Waiting Room.
5. Around 21:00 hours, Rinku, accompanied by Babloo, a parcel supervisor at Assam Station
entered the Ladies Waiting Room before their train journey. Initially, Kinzi Maiomi seemed
to have some doubts, but her concerns were alleviated after the lady attendants on duty at
the Ladies’ Waiting Room verified the legitimacy of Rinku and Babloo's credentials.
However, she agreed to accompany them to Yatri Niwas. On their way to Yatri Niwas,
Santosh, a khalasi of the electric department at Assam Station, joined the group.
6. She was taken to room No.102 on the first floor of Yatri Niwas which was booked in the
name of Rinku against Railway Card pass no. 3638 since 30th December, 2022. In room
no.102 two other persons namely, one Kaleen, Parcel Clerk of Assam Railway Station and
Awadh, Parcel Clearing Agent were waiting. Kinzi Maiomi had felt that something was
wrong when she was forced into the room. Awadh bolted the room from outside and stood
on guard outside Salil, a 16-year-old boy helper at the railway on a contract basis took
liquor inside the room and also coerced her to consume liquor. In the room Kinzi Miaomi
was subjected to a brutal violation and all 5 persons committed gang rape on her.

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MEMORIAL ON BEHALF OF THE APPELLANT
 Shri Vaishnav Vidyapeeth Vishwavidyalya, Indore National Moot Court Competition, 2023

7. On recovering she somehow managed to escape the room of Yatri Niwas and came back to
the platform where she saw Kallu who pretended to be her saviour and asked her to
accompany him to his residence to rest for the night with his wife and children. He assured
her to help her board some other train the following morning.
8. Afterwards, Kallu, accompanied by Golu, a friend of Kallu, brought her to Golu's rented
flat at 78, Pathuriaghata Street, Assam Police Station. At this location, Kallu sexually
assaulted Kinzi Maiomi. As she protested and resisted, Kallu and Golu forcibly silenced
her by tightly gagging her mouth and nostrils. They intended to potentially kill her, which
led to Kinzi Maiomi bleeding profusely.
9. She was later rescued by the Assam police when informed by the landlord of the building
following the hue and cry raised by Kinzi Maiomi.
10. A PIL was registered by Advocate Mrs Radhika and a few NGO Members under Article
226 before the High Court against the Railway Board and Union Of India. Subsequently,
the High Court directed the Railway Boards to pay a sum of Rs. 40 lacs as compensation
to Kinzi Maiomi.

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MEMORIAL ON BEHALF OF THE APPELLANT
 Shri Vaishnav Vidyapeeth Vishwavidyalya, Indore National Moot Court Competition, 2023

STATEMENT OF ISSUES

Issue I

WHETHER KINZI MAIOMI WHO IS A FOREIGNER AND NOT AN INDIAN CITIZEN IS

ENTITLED TO RELIEF, COMPENSATION, AND DIGNITY UNDER THE
CONSTITUTION OF INDIA?

Issue II

WHETHER THE COMMISSION OF AN OFFENCE LIKE RAPE BY THE PERSON

CONCERNED, WOULD MAKE THE RAILWAYS OR THE UNION OF INDIA LIABLE TO
PAY COMPENSATION TO THE VICTIM OF THE OFFENCE ON THE GROUND OF
VICARIOUS LIABILITY?

Issue III

WHETHER THE ACCUSED SALIL (16-YEARS-OLD) CAN BE TREATED AS AN ADULT

FOR THE OFFENCE OF GANG RAPE?

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MEMORIAL ON BEHALF OF THE APPELLANT
 Shri Vaishnav Vidyapeeth Vishwavidyalya, Indore National Moot Court Competition, 2023

SUMMARY OF ARGUMENTS

1. That Kinzi Maiomi, a foreigner, is not entitled to relief under the Constitution of India.

It is humbly submitted before the Hon'ble court that Smt. Kinzi Maiomi, in the aforesaid
case, is not entitled to any relief /compensation under the constitution of India for the
following reasons:

 If sufficient alternative remedy is available, the remedy under the constitution

should not be used as a substitute.
 The remedy lies in Private law and not in Public law.
2. That Railways and Union of India are not liable to pay compensation to the victim on the
ground of vicarious liability.
It is submitted that there exists no liability on the part of the railway or the Union of
India in the current instance, and thus, there is no obligation to provide compensation
for the below stated reasons:
 The perpetration of an offense such as rape arises from the personal actions of
individuals and extends beyond the scope of their employment obligations.
 The avenue for pursuing compensation lies within the domain of private law
rather than public law. Consequently, the affected party should have pursued
damages claim through a Civil Court rather than seeking recourse through an
approach to the High Court under Article 226.
3. That the accused Salil should not be treated as an adult for the offence of gang rape.
The council humbly submits before the hon’ble court that the accused Salil cannot be
treated as an adult for the crime of the gang rape for the following reason:
 As per the mandate of Juvenile Justice (Care and Protection of Children) Act,
2015 Salil is a child and therefore cannot be treated as an adult.
 The Provisions of the Act dealing with the treatment of minor of age 16-18 as
adults in cases of heinous offences is unconstitutional as it is a violation of
Article 14 and that it grants arbitrary powers to the Juvenile Justice Board.
 Juveniles lack the mental maturity to understand the seriousness and the
consequences of their acts, and cannot understand the same as adults do.

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MEMORIAL ON BEHALF OF THE APPELLANT
 Shri Vaishnav Vidyapeeth Vishwavidyalya, Indore National Moot Court Competition, 2023

ARGUMENTS ADVANCED

Issue I: Whether Kinzi Maiomi, Who Is A Foreigner And Not An Indian Citizen Entitled
To Relief, Compensation, And Dignity Under The Constitution Of India?

1.1. The remedy sought by the respondent under the constitution is extraordinary.
1. It is most humbly presented before the Hon’ble Supreme Court of India that the relief
and compensation sought by the respondent under the constitution, through Article
226, writ petition before the Hon’ble High Court is extraordinary.
2. It is the nature and uniqueness of each case that determine the type of remedy that is
made available to the victim. A Constitutional remedy such as that of issuance of writs
under Articles 226 and 32 is often regarded as an extraordinary remedy. It is such a
cure that is to be used only when the conventional ones fall short of helping the victim
find justice or rehabilitation.
3. Concerning the statements made above the Supreme Court in the case of Union of
India v. T. R Verma1, observed as follows,
“It is well-settled that when an alternative and equally efficacious remedy is open to a
litigant, he should be required to pursue that remedy and not invoke the special
jurisdiction of the High Court to issue a prerogative writ.”
4. This however does not imply that the power exercised by the Courts to issue writs is
compromised by the availability of an alternative remedy. The existence of an adequate
legal remedy is a thing to be taken into consideration in the matter of granting writs is
what it implies. 2
5. If any statutory provision prescribes a remedy or procedure for the enhancement of the
right or liability, the resort must be sought under it primarily before invoking the
extraordinary and prerogative writ jurisdiction of the Court under Article 226. 3
6. However, it is the discretion of the Court to refuse to interfere in a petition under Article
226 when statutory remedy exists, unless there are reasonable grounds therefore as
observed by the Supreme Court in K. S Rashid and Sons v. The Income Tax
Investigation Commission.4

1
1957 AIR 882, 1958 SCR 499.
2
Raghid Ahmed v. Municipal Board, Kairana 1950 AIR 163, 1950 SCR 566.
3
Delhi Cloth & General Mills Co. Ltd. v. CTO Jaipur, (1973) 3 SCC 443; Titaghur Paper Mills v. State of
Orissa (1983) 2 SCC 433.
4
1954 AIR 207, 1954 SCR 738.

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MEMORIAL ON BEHALF OF THE APPELLANT
 Shri Vaishnav Vidyapeeth Vishwavidyalya, Indore National Moot Court Competition, 2023

7. This principle can be seen reiterated by the Apex court using the judgement in
Wolverhampton New Water Works Co. v. Hawkesford5by Wiles J, As follows:
“There are three classes of cases in which a liability may be established founded upon
statute……………... But there is a third class, viz., where a liability not existing at
common law is created by a statute which at the same time gives a special and
particular remedy for enforcing it……… the remedy provided by the statute must be
followed, and it is not competent to the party to pursue the course application to cases
of the second class. The form given by the statute must be adopted and adhered to.”
8. Hence in the light of the above said arguments it is brought to the attention of this Court
that the Respondent’s claim for relief under the Constitution of India is extraordinary.

1.2. The relief for the Respondent lies in private law and not under public law.
9. It Is humbly brought to the attention of the Hon’ble Supreme Court of India that the
Respondent is only entitled to relief and compensation under the Indian Penal Code,
1860 read along with The Code of Criminal Procedure, 1973.
10. Public law regulates interactions between citizens and the state, whereas private law
regulates relationships between citizens. In the instant case, it is to be noted that the
injury incurred by the respondent is committed by a group of individuals, who are
citizens of the State and it is only reasonable to believe that the relief for such should
be sought under the private law and not under public law.
11. The Respondent in the present case should have approached the appropriate Sessions
Court under Section 357, 357A of the Code of Criminal Procedure, 1973 read with
376D of the Indian Penal Code, 1860 for damages as a relief for the crime committed
against her by the tortious act of the employees.
12. Section 357 empowers the Court to award compensation to the victim having due
regard to the nature of the injury, the manner of inflicting the same, the capacity of the
accused to pay and other relevant factors. The Code of Criminal Procedure, 1973
incorporated Section 357 which states in its Objects that the provision was inserted as
it "intended to provide relief to the proper sections of the community".
13. However, the provision alone cannot provide proper relief to the victim. The provision
was heavily criticised by the Court in Ankush Shivaji Gaikwad v. State of
Maharashtra6, where it has been observed that: “The object and purpose of the

5
(1859) 6 CBNS. 336: 141 ER 486, p.356.
6
(2014) 1 SCC (Cri) 285.

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MEMORIAL ON BEHALF OF THE APPELLANT
 Shri Vaishnav Vidyapeeth Vishwavidyalya, Indore National Moot Court Competition, 2023

provision are to enable the Court to direct the State to pay compensation to the victim
where the compensation under Section 357 was not adequate or where the case ended
in acquittal or discharge and the victim was required to be rehabilitated.”. This led to
the 2008 Amendment of CrPC inserting the concept of the ‘Victim Compensation
Scheme’, a new section, section 375A in the Code. This provision was introduced due
to the recommendations made by the Law Commission of India in its 152nd and
154th Reports in 1994 and 1996 respectively.
14. Under this provision, even if the accused is not tried but the victim needs to be
rehabilitated, the victim may request the State or District Legal Services Authority to
award him/her compensation.
15. The Jharkhand High Court in Sumit Kumar Shaw and Ors. v. State of Jharkhand and
Ors7. gave a reasonable explanation on the scope of Section 357A of the CrPC as
follows, “As per Section 357A of the Code and the Scheme, even if the accused is not
identified or he is discharged or acquitted, the victim is entitled to get compensation
from the fund, which is created by the State. In other words, it is the State, who has to
compensate the victim………… When these crimes are heinous and affect the social
fabric, and the victim is downtrodden and belongs to the lower strata of society, the
responsibility of the State increases manifolds. Thus, it is the State who has to
compensate the victim of these types of crimes, irrespective of the fact whether the
accused has been identified or not or whether the accused has been
discharged/acquitted. This is the reason why, in terms of Section 357A of the Code, the
State is saddled with the liability to compensate and rehabilitate the victim and not the
accused, whose guilt is yet to be proved.”
16. The judiciary has always had a positive lookout for the benevolent provision of the
CrPC in compensating the victims and also focusing heavily on the rights of the victims
during a criminal trial. This can be observed in the judgment passed in Harikrishna and
State of Haryana v. Sukhbir Singh8 where the Supreme Court directed the courts to
exercise Section 357 liberally and award adequate compensation.
17. It is humbly submitted before the Hon’ble Court by the Counsel for the Appellant that
it should provide relief to the Respondents under Private Law according to the

7
Cr. M.P. No. 2194 of 2020.
8
1988 AIR 2127, 1988 SCR Supl. (2) 571.

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MEMORIAL ON BEHALF OF THE APPELLANT
 Shri Vaishnav Vidyapeeth Vishwavidyalya, Indore National Moot Court Competition, 2023

provisions stated above and not under the Constitution of India as claimed by the
counsel for the Respondents.
18. Thereto rightfully pleaded that the Respondents under no reasonable ground is
entitled to relief under the Constitution of India.

Issue II: Whether The Commission Of An Offence Like Rape By The Person
Concerned, Would Make The Railways Or The Union Of India Liable To Pay
Compensation To The Victim Of The Offence On The Ground Of Vicarious Liability?

19. It is most respectfully submitted before this honourable Court that the commission of
an offence like rape constitutes the personal action of the employee and falls beyond
the realm of employment responsibilities. Moreover, the avenue for seeking
compensation is situated within the realm of private law rather than public law and for
the same reason the victim should have pursued a claim for damages through a Civil
Court instead of resorting to approaching the High Court under Article 226. Therefore,
there is no vicarious liability arising on behalf of the railway or the UOI in this instant
case and hence they need not pay compensation. To further support this contention the
following sub-issues are addressed before this Hon’ble Court

2.1 The Commission of the offence was an individual act rather than an official one.
20. It is presented before the honourable court, in essence, for the employer's accountability
to emerge, the action must either be a wrongful act authorized by the employer or an
unauthorized and wrongful method of performing an action sanctioned by the
employer. Here given the individual nature of the actions undertaken by those
individuals, they should be the sole subjects of prosecution. Upon proven guilty they
must be subjected to face punishments, fines or obligatory compensation for the
heinous crime that they have committed. However, considering this present case,
neither the railway nor by broader context, UOI be held vicariously liable for the
individual act of the employees.
21. To substantiate this above-stated point the Counsel would like to bring attention to the
observation of the Supreme Court of Canada in Canadian Pacific Ry Co. v. Leonard9
that if the unauthorized and wrongful action of the employee is not sufficiently linked
to the authorized action to be considered a method of it, but instead stands as an

9
(1941) S.C.R 278.

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MEMORIAL ON BEHALF OF THE APPELLANT
 Shri Vaishnav Vidyapeeth Vishwavidyalya, Indore National Moot Court Competition, 2023

independent action, the employer bears no responsibility. In such instances, the

employee is not acting within the scope of their employment but has ventured beyond
it. In the present case, such a sufficient link cannot be established thereby implying
that the Railway nor the Union of India has to bear the liability of the act of its
employees.
22. In the case if the chain of events leading to the commission of the offence was
directed by individual events which were over and beyond the course of employment
the employer cannot be necessarily held accountable for such offences. 10
23. This principle can be seen reaffirmed by the Honourable Supreme Court in the State of
Maharashtra and Ors v. Kanchanmala Vijaysingh Shirke and Ors11 where it was
concluded that when the action of the employee bears no connection, even remotely, to
the scope of employment and constitutes an autonomous act, the employer is absolved
of liability. The pivotal criterion revolves around whether the initial action of the
employee was explicitly authorized and lawful. In the present matter, the railways
employees committed rape out of personal interest which is clearly not an authorised
act and hence there is no vicarious liability arising on the part of the railways or the
Union of India.
24. In Sitaram Motilal Kalal vs Santanuprasad Jaishankar Bhatt12 it was construed that the
principle of master's liability arising for the wrongful acts of the servants was dealt with
and it was pronounced that employers hold vicarious liability for the deeds of their
employees carried out within the scope of their employment. Unless the action is
conducted in the course of employment, the employee's action does not impose liability
on the employer. Here the clarity of the situation is evident from the case's factual
context that the railway employees acted on their personal interests and committed the
atrocious offence. For that reason, there arises no liability on behalf of the railway board
or the Union of India.
2.2 Close Connection test by Salmond.
25. The origin of the close connection test for establishing vicarious liability can be traced
back to Salmond’s rule: “A master is not responsible for a wrongful act done by his
servant unless it is done by his servant in the course of his employment. It is deemed

10
Jacobi v. Griffiths 1999 CanLII 693 (SCC), (1993) 2 SCR 570.
11
MANU/SC/0781/1995.
12
1966 AIR 1697, 1966 SCR (3) 727.

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MEMORIAL ON BEHALF OF THE APPELLANT
 Shri Vaishnav Vidyapeeth Vishwavidyalya, Indore National Moot Court Competition, 2023

to be so done if it is either (a) a wrongful act authorized by the master, or (b) a

wrongful and unauthorized mode of doing some act authorized by the master.”13 In the
present appeal the employer being the railways cannot be held liable in any
circumstance since the wrongful act of committing rape had nothing to do with the
scope of employment. It was completely a wrongful act done out of personal interests
therefore there exists no legal obligation on behalf of the railways to pay
compensation.
26. To establish a connection of the above-stated principle and the present appeal the
Counsel would like to consider the case of Larry Deterts v. Times Publishing
Company et al14. The Colorado Court of Appeals while considering the matter held
that for the employer to be held accountable for the actions of their employees, a
causal link must be present. "The test in Colorado for determining if an injury has
emerged within the scope of employment is based on whether there exists a causal
correlation between the duties performed in the course of employment and the
resulting injury." In the [resent matter no such causal connection can be established
between the offence committed by the employees and the duty assigned to them by
the authorities.
27. In the case of Bazley v. Curry15, the Canadian Supreme Court established that a close
connection between the wrongful act and the business would exist only when the
employer's business had either created or significantly increased the risk. It was under
these circumstances that holding the employer liable would effectively align with the
dual objectives of providing sufficient compensation and discouraging future
misconduct. Here the employer being the railway board cannot be subjected to such
liability.
28. Concerning the above-stated arguments the Counsel would like to define the
prerequisites for establishing the vicarious liability of an employer as a threefold
criterion. It is as follows:
i. existing employment relationship
ii. wrongful act by the employee
iii. wrongful act committed during the scope of employment

13
Heuston & Buckley (eds) Salmond & Heuston on the Law of Torts 21st ed (1996) 443.
14
38 Colo. App. 48, 552 P.2d 1033.
15
[1999] 2 SCR 534.

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MEMORIAL ON BEHALF OF THE APPELLANT
 Shri Vaishnav Vidyapeeth Vishwavidyalya, Indore National Moot Court Competition, 2023

The third crucial criterion, which involves the occurrence of the offence during the course
of employment, cannot be equated in the current context, given that rape is not an official
action for which the authorities have granted authorization to the employees.

2.3 An illegal act by the employee does not make the employer liable.
29. It is most respectfully presented before this esteemed court that rape is an illegal offence
punishable under Section 375 of IPC, 1860, the commission of which falls outside the
bounds of employment. In consideration of this, the employer cannot be held
accountable solely on the premise that the accused individuals are its employees.
30. In the case of Industrial Com. v. Enyeart 16
the Supreme Court of Colorado (en banc)
held that an incident stemming from a cause introduced onto the employer's premises
by the worker for their personal motives is not a consequence of their employment and
does not originate from it. Likewise, in the current situation, when the employees
committed the act of rape, they detached themselves from their employment and acted
independently, subjecting themselves to their own risks. The offence was a consequence
of hazards arising from their irrational personal behaviour. Consequently, the state bears
no responsibility to provide compensation for an unlawful act such as rape. Henceforth
it is humbly submitted before this Hon’ble Court that the Railways nor the Union of
India can be held vicariously liable to pay compensation to the victim for the offence
committed by its employees.

Issue III: Whether The Accused Salil Can Be Treated As An Adult For The Offence Of
Gang Rape?

3.1. The provisions under Section 15 & 18(3) of the Juvenile Justice Act is unconstitutional.
31. It is submitted that the treatment of children or juveniles in the age group of 16-18
different from children and juveniles below 16 years of age violates Article 14 of the
Constitution of India. There is no reasonableness for such differentiation resulting in
inequality for children and juveniles above the age of 16. It is emphasized that a minor
or a child or a juvenile has been defined as a person below the age of 18 under all the
other laws in existence in India and Section 15 of the Act is the only law that reduces

16
81 Colo. 521 (Colo. 1927) 256 P. 314.

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MEMORIAL ON BEHALF OF THE APPELLANT
 Shri Vaishnav Vidyapeeth Vishwavidyalya, Indore National Moot Court Competition, 2023

the age of juveniles to 16 in certain cases which is an exception. The classification under
Section 15 of the Act is not reasonable and it has no rational nexus. 17
32. In addition to this, the jurisdiction of Article 14 also extends to the prevention of
arbitrary actions. A.P. Pollution Control Board II v. M.V. Nayudu18. It is humbly
submitted that in accordance with Section 15 of the Act, the Juvenile Justice Board
possesses the authority to initiate an initial inquiry to ascertain whether the juvenile in
question should undergo rehabilitation measures or be subjected to proceedings as an
adult, a provision marked by its discretionary nature. Furthermore, the proviso under
Section 15 of the Act states that during the preliminary assessment by the board in the
case of a heinous offence the board may take the assistance of an experienced
psychologist or a psycho-social worker or other experts. It can also be comprehended
in a meaning that the board may not also take such assistance in conducting the
preliminary inquiry which in term shows the arbitrary powers of the board. In the case
of Avinder Singh v. State of Punjab19, it was held that arbitrariness must be excluded
from the law if the power is arbitrary and is of potential inequality.
33. 5. It is submitted that the report of the Standing Committee in the Rajya Sabha which
was constituted before the passing of the Juvenile Justice (Care and Protection of
Children) Bill, 2014 conveys that the various experts who were consulted by the
committee were of the view that the proposed legislation were contrary to the provisions
of the Constitution. The report concluded that “the existing juvenile system is not only
reformative and rehabilitative in nature but also recognizes the fact that 16-18 years is
an extremely sensitive and critical age requiring greater protection. Hence, there is no
need to subject them to a different or adult judicial system as it will go against Articles
14 and 15(3) of the Constitution.”20
34. In addition to this Prof. B.B. Pande has commented the following on the decision that
the juvenile justice philosophy is strongly premised on non-discrimination between
different categories of children, rather than creating a new category “children with
criminal propensities”. He also says that apart from being legally unsustainable such a

17
Abhinav Benjamin and Ananth Kamath M, Juvenile Injustice : A Critique on the Constitutionality of Deeming
16-18 Year Old Juveniles as Adults under the Juvenile Justice (Care and Protection of Children) Act, 2015.CNLU
LJ (8) [2018-19] 182.
18
(2001) 2 SCC 62.
19
(1979) 1 SCC 137 : AIR 1979 SC 321.
20
The Juvenile Justice (Care and Protection of Children) Bill, 2014, Report No. 264, Rajya Sabha (2015).

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 Shri Vaishnav Vidyapeeth Vishwavidyalya, Indore National Moot Court Competition, 2023

new categorization is scientifically non-tenable. On an analogy, it can very well be

argued that creating a sub-category of children in the age group of sixteen to eighteen
years is not in sync with the philosophy of juvenile justice. 21

3.2. Lack of mental maturity of the accused

35. The Justice Verma Committee, entrusted with the task of examining potential revisions
to criminal statutes pertaining to acts of sexual violence against women, conducted a
thorough analysis of existing statistical data and empirical findings concerning
recidivism. Furthermore, the committee duly considered India's international
obligations concerning the safeguarding of Children's Rights. Consequently, it opined
that the existing threshold of 18 years should be maintained, advocating against any
reduction in the age-defining juveniles to 16 years. The committee stated that “We are
of the view that the material before is sufficient for us to conclude that the age of
‘juveniles’ ought not to be reduced to 16 years.”22
36. It is further submitted that the age range spanning from sixteen to eighteen covers a
phase of juvenile development marked by significant physiological, emotional, and
psychological changes. This phase represents a crucial transitional period in the minor's
life, necessitating an integrated perspective that does not isolate or dissociate this period
from their years of childhood. 23It is submitted that, although by age sixteen, juveniles
reach adult levels of intellectual maturity; psychosocial maturity continues to develop
into early adulthood. They do not “put facts together and conclude the way adults
do.”24Furthermore, brain development isn't fully finished at eighteen. Instead, it carries
on into adulthood and might not be done until around twenty-five. “As a result, although
today's teens mature physically at younger ages than their parents, and although they
take on many of the behavioural trappings of adulthood, that does not mean that they
understand the full implications of their behaviour.”25 In light of the above, it is
submitted that a juvenile of even 18 years of age does not attain enough mental maturity
to understand the consequence of their acts and behaviour.

21
B.B. Pande, “Stilling the Turbulent Juvenile Justice Waters: The Supreme Court's Precedented Response to an
Unprecedented Challenge in Salil Bali v. Union of India”, (2013) 9 SCC J-25 at 33.
22
Report of The Committee on Amendments to Criminal Law, Justice Verma Committee, pg. 259, para. 54.
23
Kumar Askand Pandey, Juvenile Delinquency and the Juvenile Justice (Care and Protection of Children) Act,
2015: A Critique, 7 RMLNLUJ (2015) 54 Brain Science
24
MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice. (2006,
September), Network overview: A century of change in juvenile justice (p. 2), Philadelphia.
25
Beyer, “Recognizing the Child in the Delinquent”, Kentucky Children's Rights Journal, Vol. VII, No. 1, Spring
1999, 45, 55.

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MEMORIAL ON BEHALF OF THE APPELLANT
 Shri Vaishnav Vidyapeeth Vishwavidyalya, Indore National Moot Court Competition, 2023

37. It was observed in the case Salil Bali v. Union of India that the Juvenile Justice (Care
and Protection of Children) Act, 2000, aligns with the Constitution and international
agreements endorsed by the United Nations. It establishes eighteen years as the age
when a person is considered a child, as guided by Article 1 of the Convention on the
Rights of the Child. The Act also considers scientific evidence that brain development
and overall growth continue until at least eighteen years, making individuals fully
accountable for their actions at that point. Mental growth is as vital as physical growth
when evaluating maturity in those under eighteen. Parliament consciously chose to
elevate the age of male juveniles to eighteen in the Juvenile Justice (Care and Protection
of Children) Act, 2000.26
38. It was observed by the United States Supreme Court that teenagers don't have fully
developed brains and that youths are less mature and not fully developed, and thus are
less culpable. 27 Additionally, it was observed that “developments in psychology and
brain science continue to show fundamental differences between juvenile and adult
minds.”28
39. It is further submitted that under the United Nations Convention on the Rights of the
Child (UNCRC), which is a comprehensive and internationally binding agreement on
the Rights of children, Article 1 states that “For the purposes of the present Convention,
a child means every human being below the age of eighteen years unless under the law
applicable to the child, the majority is attained earlier.”29 Additionally, in the UNCRC,
the General Resolution of the year 2007 clearly contemplates the age of a juvenile as
18 years and mandates member States to act accordingly. The UNCRC requires all
signatory countries to treat every child under the age of 18 years as equal, 30 which was
observed and held binding in the case of Subramanian Swamy v. Raju.31
40. It was held by the Honourable Supreme Court in Balkar Singh v. State of Punjab32 that
cases of offences by teenagers of immature age should be dealt with leniently and thus

26
Id. at paras 44-45.
27
Graham v. Florida, 176 L Ed 2d 825 : 130 SCt 2011 : 560 US 48 (2010); Roper v. Simmons, 161 L Ed 2d 1 :
543 US 551 (2005).
28
Graham v. Florida, 176 L Ed 2d 825 : 130 SCt 2011 : 560 US 48 (2010).
29
General Assembly resolution 44/25, Convention on the Rights of the Child, A/RES/44/25 (20 November
1989).
30
United Nations, Committee on the Rights of the Child (CRC), Children's Rights in Juvenile Justice : General
Comment No. 10, CRC/C/GC/10, (15 January 2007).
31
Supra 10.
32
AIR 1994 SC 1133

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MEMORIAL ON BEHALF OF THE APPELLANT
 Shri Vaishnav Vidyapeeth Vishwavidyalya, Indore National Moot Court Competition, 2023

the sentence of the appellant was reduced. Moreover, in the case of Subramanian
Swamy v. Raju,33 the Supreme Court rejected the petition to classify juveniles facing
heinous offences as adults, asserting that the provisions of the Juvenile Justice Act, 2000
clearly manifest the legislated purpose in consideration of the nation's international
commitments, thereby remaining consistent with constitutional imperatives.
41. On the bare reading of Sections 2(12)34, 2(13)35, 2(35)36 it can be comprehended that a
child or a juvenile is a person who has not completed the age of 18 years. Further,
heinous offences are those offences which prescribe a punishment of 7 years or more
in the Indian Penal Code, 1860 according to Section 2(33) of the Act and serious
offences are those offences which prescribe a punishment of 3-7 years in the Indian
Penal Code, 1860 under Section 2(54). Now the case of Shilpa Mittal v. State of NCT
Delhi and Ors.37 The Supreme Court held that Offences prescribing a maximum
sentence of more than 7 years but not providing any minimum sentence or providing a
minimum sentence of less than 7 years imprisonment, held, are not covered by Section
2(33)38. In the exercise of power under Article 142 of the Constitution, the Honourable
Court held, such offences shall be treated as "serious offences" within the meaning of
Section 2(54) till the Parliament takes steps to correct them.
42. In the case of Barun Chandra Thakur v. Bholu39, it was discussed that the Apex Court
held that, while interpreting the scheme of the Act, the interests of children should be
protected and to treat them as adults is an exception to the rule.
43. From the arguments stated above, it is most humbly submitted before this Hon’ble
Court that Salil cannot be in any manner treated as an adult as the contrary would be
bad in the eyes of the Law and would result in injustice.

33
(2014) 8 SCC 390.
34
Section 2(12), Juvenile Justice (Care and Protection of Children) Act, 2015.
35
Section 2(13), Juvenile Justice (Care and Protection of Children) Act, 2015.
36
Section 2(35), Juvenile Justice (Care and Protection of Children) Act, 2015.
37
AIR 2020 SC 405.
38
Section 2(35), Juvenile Justice (Care and Protection of Children) Act, 2015.
39
2022 SCC OnLine SC 870.

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MEMORIAL ON BEHALF OF THE APPELLANT
 Shri Vaishnav Vidyapeeth Vishwavidyalya, Indore National Moot Court Competition, 2023

PRAYER

In light of the issues raised, arguments advanced, reasons given and authorities cited it is most
humbly and respectfully requested that this Hon'ble Supreme Court may be pleased to adjudge
and declare on behalf of the appellant:
1. That Kinzi Maiomi, a foreigner, is not entitled to relief/compensation under the Constitution
of India
2. That the commission of an offence like rape by the persons concerned would not make the
railways or the UOI liable to pay compensation to the victim for the offence on the ground of
vicarious liability.
3. That Salil (16-year-old) should not be treated as an adult and it is further requested an order
stating that the trial not to be transferred to the Children’s Court.
FILED BY:
Sd/-

COUNSEL FOR THE RESPONDENT, KINZI MAIOMI

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MEMORIAL ON BEHALF OF THE APPELLANT