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TEAM CODE: R8

IN THE SUPREME COURT OF BHARAT


AT DILLI

UNDER ARTICLE 32 OF THE CONSTITUTION OF BHARAT


W.P. (Crl.) No. 15211 of 2018

CASE CONCERNING QUASHING OF FIR AND ENTIRE CRIMINAL


PROSECUTION AGAINST LT. COL. HOSHIYAR SINGH

LT. COL. HOSHIYAR SINGH & ANR


(APPELLANTS)
V.
STATE OF DRAS & ANR
(RESPONDENTS)

THE CNLU GENERAL INTRA MOOT COURT COMPETITION


MARCH 2018

WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS


TABLE OF CONTENTS

TABLE OF CONTENTS………………………………………………………………………i

TABLE OF AUTHORITIES…………………………………...……………………...….....iii

STATEMENT OF JURISDICTION………………………………………………………….vi

QUESTIONS PRESENTED…………………………………………………………………vii

STATEMENT OF FACTS………………………………………………………………….viii

SUMMARY OF PLEADINGS………………………………………………………….….…x

PLEADINGS ADVANCED………………………………………………………………..…1

1. That the writ petition filed by the petitioners is not maintainable in the Hon’ble

Supreme Court…………………………………………………………………………...1

1.1. The Petitioner is required to exhaust local remedies…………………………………1

1.2. The Rule of exhaustion of local remedies is not a violation of Article 32……………1

1.3. In any case, no fundamental rights are violated………………………………………2

2. That the FIR against the Commandant and the Junior Commission should not be

quashed……………………………………………………………………………………3

2.1. That the FIR was based on genuine facts and prima facie offence is made out against

the petitioners…………………………………………………………………………3

2.2. That the provisions of Special Power to the Armed Forces Act, 2016 do not bar the

FIR or make it invalid………………………………………………………………...4

2.3. That when prima facie an offence is made out against the petitioner the FIR shall not

be quashed…………………………………………………………………………….6

3. That The Constitutionality of A Law Is Not To Be Measured By Its Object But By

Its Effect…………………………………………………………………………………..7

i
3.1. That It Is Beyond Legislative Competence To Enact Sec. 4(a) Of The SPAF Act,

2016…………………………………………………………………………………...8

3.1.1. That “In Aid of The Civil Power” Means Direction Or Superintendence Or

Control By The State Government………………………………………………8

3.1.2. That The Parliament Has No Legislative Competence To Vest Army With The

Power To Maintain ‘Public Order’……………………………………………..10

3.2. That The Sec. 4(d) Violates Right To Privacy Guaranteed Under Right To Life…11

3.2.1. That The “Enter And Search” Without Warrant Violates Right To Privacy...11

3.2.2. That The Procedure Is Not Just, Reasonable And Fair………………………12

3.3. That The Sec. 4 and The Whole Act Shall Be Struck Down As Unconstitutional On

The Basis Of Doctrine Of Severability……………………………………………...13

4. That the immediate Withdrawal of the troops from Dras is the need of the Hour…14

4.1. Armed Forces should be deployed to protect the interests of the citizens not hamper

them………………………………………………………………………………….15

5. That the Investigation of the Incident must not be handed over to Independent

agency………………………………………………………………………………….16

5.1. That Independent Agencies is handed over the investigation process in cases where

the prior investigation was biased…………………………………………………...16

5.2. That the investigation can be handed over to independent agency in exceptional and

extraordinary cases and cases where the high police officials are involved in the said

crime…………………………………………………………………………………17

6. That compensation should be provided to the family of the victim, killed in the firing

conducted by the army………………………………………………………………….19

6.1. That the Army had used excessive force on the victim……………………………..19

PRAYER FOR RELIEF……………………………………………………………………...21

ii
TABLE OF AUTHORITIES

Acts and Statutes

1. Constitution of India, 1950


2. International Covenant on Civil and Political Rights, 1966
3. Special Power to Armed Forces Act, 2016
4. The Protection of Human Rights Act, 1993

Cases

1. A.K.Gopalan v. State of Madras, AIR 1950 SC 27….13


2. Ainul Ali Khan v. Saqar Begum, 1994 Cri. L.J. N.O.C. 129 (Orissa)…2
3. All India Federation of Tax Practitioner & Ors. V. Union of Indian & Ors., Appeal
(civil) 7128 of 2001….10
4. Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1….13
5. Avinash Chand Gupta v. State of Uttar Pradesh, (2004) 2 SCC 726…1
6. Cibatul Limite., P.O. Atul vs. Union of India & ors., 1978 (2) ELT 68 Guj….10
7. Corpn. Of Calcutta v. Calcutta Tramsways Co. Ltd., AIR 1964 SC 1279….13
8. Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457….2
9. Devarapalli Lakshminarayana Reddy & Ors. v. V. Narayana Reddy & Ors., AIR 1976
SC 1672..5
10. Extra Judicial Execution Victim vs Union Of India And Ors (2016) 14 SCC 578….5,
15, 18
11. General Officer Commanding vs Cbi & Anr CRIMINAL APPEAL NO. 257 of
2011…5
12. I.T.C. Limited vs. Agricultural Produce Market Committee & ors., Appeal (civil)
6543 of 2001…10
13. Jamuna Singh & Ors. v. Bhadai Shah, AIR 1964 SC 1541…5
14. Jaora Sugar Mills (P) Ltd. Vs. State of Madhya Pradesh & ors., AIR 1966 SC
416….10

iii
15. K. Chandrasekhar vs State of Kerala & Ors. (1998) 5 SCC 223…17
16. K.C. Gajapati Narayana Deo And Other v. The State Of Orissa….11
17. K.S.Puttuswamy v. Union of India [Writ Petition (Civil) No.494 of 2012]….11
18. Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159………1
19. Kashmeri Devi vs Delhi Administration & Anr AIR 1988 SC 1323……17
20. Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225….10
21. Kihota Hollohan v. Zachillu, AIR 1993 SC 412….13
22. Kishan Lal vs Dharmendra Bafna (2009) 7 SCC 685….17
23. M/s Hanutlal v. State of Bihar, 1990(1) Crimes 179…..2
24. Maneka Gandhi v. Union of India, 1978 SCR (2) 621…12
25. Maneklal v. M.G.Makwana, AIR 1967 SC 1373….12
26. Martin and Harris Ltd. v. VIth Additional District Judge & Ors., AIR 1998 SC
492…5
27. Mithabhai Pashabhai Patel & Ors. vs State of Gujarat (2009) 6 SCC 332….17
28. Motor General Traders v. State of A.P., AIR 1984 SC 121….13
29. Naga People’s Movement of Human Rights Etc. vs Union of India AIR 1998 SC
431….4
30. Naga People’s Movement of Human Rights v. Union of India….15
31. Namit Sharma v. Union of India, Writ Petition (Civil) No. 210 of 2012 (India)….10
32. PN Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732....2
33. PN Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732…..1
34. Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996…..2
35. R.C.Cooper vs. Union of India, (1970) 1 SCC 248….8
36. R.M.D.Chamarbaugwalla v Union of India, AIR 1957 SC 628…..13
37. Rakesh Kholi’s case, (2012) 6 SCC 312 (India)…10
38. Ramachandran vs R. Udhayakumar & Ors. (2008) 5 SCC 413….17
39. Ramjilal v. Income Tax Officer, AIR 1951 SC 97....2
40. Rubabbudidin Sheikh vs State of Gujarat & Ors. (2010) 2 SCC 200….18
41. S.N. Sharma vs Bipen Tiwari & Ors.AIR 1970 SC 786….17
42. Sakiri Vasu v. State of Uttar pradesh & Ors (2008 [1] KLT 724)…18
43. Secretary Minor Irrigation & Rural Engineering Services, UP & Ors. vs. Sahngoo
Ram Arya & Anr. (2002) 5 SCC 521….18
44. Secretary, Govt. of India v. Alka Subhash Gadia, 1990 SCR, Supl. (3) 583…..1
45. State of Bihar v. Kameshwar Singh, AIR 1952 SC 252….13

iv
46. State of Bihar v. P.P. Sharma, 1991(2) Crimes 113 (136) SC…3
47. State of Bombay v. F.N.Balsara, AIR 1951 SC 318….13
48. State of Haryana vs. Bhajanlal, AIR 1992 SC 604….5
49. State of M.P. v. Ramojirao Shinde, AIR 1968 SC 1053….13
50. State of West Bengal v. Swapan Kumar Guha, AIR 1982 SC 949….3
51. Subhas Aggarwal v. State of Bihar, 1989 Cri. LJ. 1752….3
52. Union of India and Others vs. State of Manipur and others 2008 Cri.L.J 32, 2007 (4)
GLT 581….5
53. Union of India v H.S.Dhillon, AIR 1972 SC 1061….10
54. Union of India v. Paul Manickam, AIR 2003 SC 4622……1

Book

1. Durga Das Basu, Shorter Constitution of India 396 (13th Ed., 2001)

v
STATEMENT OF JURISDICTION

The Respondents have appeared to the Hon’ble Supreme Court of Bharat in response to the
Petition filed by the petitioners under Article 32 of the Constitution of Bharat. The
memorandum of the respondents set forth the facts, contentions and arguments present in the
case.

vi
QUESTIONS PRESENTED

1. Whether the instant petition is maintainable?


2. Whether the FIR against the Commandant and JCO is fit to be quashed?
3. Whether the Special Powers to the Armed Forces Act, 2016, is fit to be quashed and
withdrawn from Dras, in view of the grave Human Rights violations done by the
armed forces?
4. Whether immediate withdrawal of troops from Dras is the need of the hour?
5. Whether the family of the victim, killed in the firing conducted by the army, should
be granted monetary compensation?
6. Whether the investigation of the incident be handed over to an independent agency?

vii
STATEMENT OF FACTS

1. Dilli is the capital of Bharat and also holds the headquarters of all important
ministries. Bharat is surrounded by 7 countries out of which three are hostile nations,
which have formed an organization named DuMiKa to show their solidarity. Since its
independence Bharat has fought wars against all the hostile nations and has won all of
them. Due to such sour relations with the hostile nations Bharat has deployed most of
its armed forces along the borders and especially in the areas near the hostile nations.
Due to intruders attempting to breach Bharat’s border the government had to deploy
three-fold security in those areas.
2. In the year 2009 the five states adjoining the DuMiKa nations witnessed heavy
disturbances and were ultimately declared as the most disturbed areas. Then the
Bhartian government called upon the DuMiKa representatives for a bilateral
negotiation, which went smoothly till they demanded an area of Dras, which is a state
in the territory of Bharat. The area which they demanded was claimed by a tribe
called Azaad which supported the DuMiKa’s ideologies. Government of Bharat
refused to part with the area and thus the meeting was called off.
3. The DuMiKa representatives threatened that the Government of Bharat will have to
face dire consequences. Thus, considering the critical situation at hand, the Bhartian
Government passed a new legislation named Special Powers to the Armed Forces
Act (SPAFA), 2016 and heavy military and para-military support was deployed in the
states adjoining hostile nations. Dras is one of the most disturbed states, also the
Azaad tribe occupies the northern part of Dras and hence the Governor of Dras has
declared it a disturbed area. The central government then issued marching orders to
the army regiment RajRif. After the implementation of SPAFA, terrorist activities
increased in Dras, the army camps were attacked and numerous civilians were killed.
4. The Ministry of Defence in its Annual Report, 2017 described many achievement of
army with main focus on Rajrif who killed more than 200 terrorist and stopped many
intrusions. Then after army got the report of harbouring by the members of azad tribe
and they conducted searches and in that they ill-treated the women and children and
they also killed some tribal people.
5. Then army headquarters issued a press release saying the allegations were false and
only tribal people were killed because they were carrying weapons and threat for

viii
army and nation, the incident caught attention of Manoj Bhagwat the local journalist
who after investigation said that acts committed by army is arbitrary use of power
under Special Powers to the Armed Forces Act and is actively involved in killing
people of Azad tribe and raped women of that tribe. The media report sparked the
debate in the legislative assembly regarding the validity of the act.
6. On 15th January, 2018, an army convoy consisting of 25 Non-Commissioned
Officers, and 7 Junior Commissioned Officers, headed by Lieutenant Colonel
Hoshiyar Singh, passing through a area of Azad tribe suddenly a shot was fired
commandant halt and order for inspect so when they went to inspect attackers started
pelting stone on them so they tried to retrieve, but then attackers threw petrol bomb on
the vehicle, after that the attackers got hold of an junior commissioned officer and try
to injured him by the help of knife and stick to which commandant ordered for
shooting and the shot hit the attacker and he died at the spot.
7. The incident caught attention of the political parties and media and there protest
caught further attention of the NHRC which conducted a survey and came to the
conclusion that army has abused their power in state of Dras, and after this report
political parties demanded for the criminal proceeding to which F.I.R was logged by
state government under many sections of I.P.C against the J.C.O and commandant.
8. The commandant moved to the supreme court of Bhart under article 32 of constitution
for quashing of F.I.R and the case was named as Lt. Col. Hoshiyar Singh Vs. The
Union of India and Ors., in which the NHRC, Dilli, was added as one of the
Respondents.
9. The supreme court of Bharat while admitting the petition framed issues which it will
adjudicate on the final hearing of the case.

ix
SUMMARY OF PLEADINGS

1. The instant petition is not maintainable since the Petitioner has not exhausted all
available local remedies before approaching this Hon‟ble Court under Art. 32. The
rule of exhaustion of local remedies is a self-imposed restraint created this Hon‟ble
Court and is not a violation of Art. 32. The Petitioner can approach the High Court
under Art. 226 which would be able to ascertain local conditions and facts and ensure
proper compliance with its orders, in any case there is no violation of fundamental
right.
2. The F.I.R against the commandant and J.C.O is not fit to be quashed because section
7 of the S.P.A.F.A does not affect the jurisdiction of the court on present matter and
also section 4A of the act does not give any privilege or protection to the armed forces
for their act, also the act prima facie seems such for which a F.I.R is maintainable.
3. That the SPAFA act is unconstitutional on the grounds of it being violative of the
seventh schedule of the constitution and also being against the principle of federalism,
it also effects and violates the right to privacy of the individual and it also violates the
human rights and I.C.C.P.R.
4. The removal of the armed forces from the state of Dras is the need of the hour, as in
many of the cases the supreme court has rightly held that army cannot take the place
of civil authorities, and over use of army is mockery of the democracy, and army
cannot be used against it’s own nationals, hence the removal of army from sate of
Dras is need of the hour.
5. The investigation of the incident must not be handed over to an independent agency
before letting it being investigated by the local police and only in exceptional and
extraordinary situations can the investigation be handed over to an independent
agency. Moreover, in the recent case there is no involvement of any high ranked
police official who is capable of influencing the investigation process conducted by
the police. Hence, the investigation of the incident should not be handed over to an
independent agency. Also, no one can demand in the court of law that a particular
authority conducts the investigation.
6. The family of the victim must be provided compensation for the violation of
fundamental right of the victim and also because the army had used excessive force

x
on the victim and had also acted in contravention to the section 4(a) of the AFSPA as
he shot the victim without giving due warning.

xi
PLEADINGS ADVANCED

The following submissions have been made before the Hon’ble Supreme Court of Bharat.
The present case has been initiated under the Article 32 of the Constitution of Bharat. The
respondents humbly submit before the Hon’ble Court the following issues:

1. That the writ petition filed by the petitioners is not maintainable in the
Hon’ble Supreme Court

It is humbly submitted before this court that the instant petition is not maintainable since:
first, the Petitioner is required to exhaust local remedies before approaching this Hon’ble
Court under Art. 32, secondly, a rule of exhaustion of local remedies is not a violation of Art.
32 and finally, in any case, no fundamental rights have been violated.

1.1. The Petitioner is required to exhaust local remedies

It is submitted that Art. 32 is not an absolute right and is subject to the self-imposed restraints
evolved by the judiciary. It has been held that since Art. 32 confers “extraordinary”
jurisdiction, the same must be used sparingly and in circumstances where no alternate
efficacious remedy is available.1 The reason for this is two-fold: first, to reduce the increasing
pendency of cases2 and second, to inspire faith in the hierarchy of Courts and the institution
as a whole.3 Therefore, the petitioner is required to approach the High Court before
approaching the Supreme Court.

1.2. The rule of exhaustion of local remedies is not a violation of Art. 32

The Petitioner may contend that the rule of exhaustion of local remedies is unconstitutional
and violative of the guarantee in Art. 32(1). However, it is submitted that the right under Art.

1
Secretary, Govt. of India v. Alka Subhash Gadia, 1990 SCR, Supl. (3) 583; Avinash Chand Gupta v. State of
Uttar Pradesh, (2004) 2 SCC 726; Union of India v. Paul Manickam, AIR 2003 SC 4622.
2
PN Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732.
3
Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159

1|Page
32(1) is not so absolute that no rules of procedure apply to it. Art. 32(1) confers a right to
move the SC by "appropriate proceedings". “Appropriate proceedings” interpreted to mean
“procedure relating to form, conditions of lodgement of petitions, and compliance with a
reasonable directions”4. Indeed, procedural factors such as res judicata,5 delay in filing the
petition and parallel proceedings6 in another Court are considered before entertaining the
appropriateness of a particular proceeding. It is submitted that the rule of exhaustion of local
remedies is another such procedural guideline and does not violate the right under Art. 32.
The power of High Court under Art. 226 is wider than the powers of this Court under Art. 32
of the Constitution7, and High Court can quash the criminal proceeding even in initial stage in
its inherent power where the allegation in the FIR even when they are taken at their face
value and accepted in its entirety do not make out any offence.8 Inherent powers of the High
Court under Section 482 of the Code is very wide in nature and such power having been
made to secure ends of justice or to prevent abuse of process of Court should be exercised
with utmost restraint. Wider the Power, greater should be the restraint.9
So in the present case high court is in a better position to deal with the case as it has more
power and it has better understanding of local scenarios therefor the petition must not be
accepted by the supreme court in the present matter.

1.3. In any case, no fundamental rights are violated.

The jurisdiction under Art. 32 can be invoked only when Fundamental Rights are violated. It
has been held that if a right, other than a fundamental right is claimed to be violated then such
questions can be addressed only in the appropriate proceedings and not on an application
under Art. 32.10 In the instant case, it is submitted no fundamental rights of the Petitioner has
been violated since section 45 of the code of criminal procedure says that “no member of the
Armed Forces of the Union shall be arrested for anything done or purported to be done by
him in the discharge of his official duties except after obtaining the consent of the Central
Government.” So in the present case even though the armed official is named in the F.I.R but

4
Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996.
5
Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457.
6
DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA 396 (13th ed., 2001).
7
PN Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732.
8
M/s Hanutlal v. State of Bihar, 1990(1) Crimes 179
9
Ainul Ali Khan v. Saqar Begum, 1994 Cri. L.J. N.O.C. 129 (Orissa).
10
Ramjilal v. Income Tax Officer, AIR 1951 SC 97.

2|Page
he cannot be arrested by the police because of the privileges he has under section 45 of
CR.P.C and there for there is possible volition of his fundamental rights since he is not
deprived from his life and liberty which may give rise to violation of article 21 of the
constitution of India.
Hence in the present case Supreme Court of Bharat has no jurisdiction on the petition under
article 32 of the constitution.

2. That the FIR against the Commandant and the Junior Commission
should not be quashed

It is humbly submitted before the Supreme Court that the F.I.R against the commandant and
the Junior Commissioned Officer must not be quashed since, the act committed and force
used by the army officers are not justified, and there is no privileges available to army
officers to justify their act.

2.1. That the FIR was based on genuine facts and prima facie offence is made out
against the petitioners

The supreme court has power to quash an F.I.R or criminal proceeding, but When it
indisputable that assuming the facts contained in the F.I.R. to be correct, prima facie offence
is made out against the petitioners, and when the court is satisfied that the allegations are
prima facie correct, the F.I.R. and the prosecution against the petitioners shall not be
quashed.11 When the F.I.R. discloses a cognizable offence then investigation cannot be
stopped and proceedings quashed Ramachandran vs R. Udhayakumar & Ors.12 In one of the
cases Supreme Court held that The legal position appears to be that if an offence is disclosed,
the court will not normally interfere with an investigation into the case and will permit
investigation into the offence alleged to be committed13.
The area of Dras was also part of disturbed area so SPECIAL POWER TO ARMED FORCES
ACT was applicable there, section 4 of that act says-

11
State of Bihar v. P.P. Sharma, 1991(2) Crimes 113 (136) SC.
12
Subhas Aggarwal v. State of Bihar, 1989 Cri. LJ. 1752
13
State of West Bengal v. Swapan Kumar Guha, AIR 1982 SC 949.

3|Page
Special powers of the armed forces Any commissioned officer, warrant officer, non-
commissioned officer or any other person of equivalent rank in the armed forces may, in a
disturbed area-
(a) if he is of opinion that it is necessary so to do for the maintenance of public order, after
giving such due warning as he may consider necessary, fire upon or otherwise use force,
even to the causing of death, against any person who is acting in contravention of any law or
order for the time being in force in the disturbed area prohibiting the assembly of five or
more persons or the carrying of weapons or of things capable of being used as weapons or of
fire-arms, ammunition or explosive substances;
This act provide power to the armed officials to do anything which may result into death for
maintaining the peace and public order, but it should be done after giving due warning. In
Naga People’s Movement of Human Rights Etc. vs Union of India14 the Supreme Court has
held that while exercising the powers conferred under Section 4(a) of the Central Act, the
officer in the armed forces shall use minimal force required for effective action against the
person/persons acting in contravention of the prohibitory order.
So in the present case while on active duty few people attacked the battalion of army with
knife and sticks, although few petrol bombs are also thrown but only on the vehicle and not
on the armed forces. One person tried to come close to the armed official, but he was only
equipped with knife and being part of army and a J.C.O he must be knew how to deal with
these kind of situation, and he must be a better fighter then a local civilian so the firing on the
individual is not the minimal force to handle the situation hence his Act cannot come in the
ambit of section 4 of SPECIAL POWER TO ARMED FORCES ACT.

2.2. That the provisions of Special Power to the Armed Forces Act, 2016 do not bar
the FIR or make it invalid

It is humbly submitted before this court that section 7 of the SPECIAL POWER TO ARMED
FORCES ACT 2016, does not bar the F.I.R or make it invalid. Section 7 of the act says-
Protection to persons acting under Act.- No prosecution, suit or other legal proceeding
shall be instituted, except with the previous sanction of the Central Government, against any
person in respect of anything done or purported to be done in exercise of the powers
conferred by this Act.

14
AIR 1998 SC 431

4|Page
This section provides for that no prosecution suit or legal proceeding shall be instituted
without prior sanction of the central government, and in the case of General Officer
Commanding vs Cbi & Anr15 the Supreme Court considered the question that:-
“Section 7 of the Act 1990 provides for umbrella protection to the Army personnel in respect
of anything done or purported to be done in exercise of powers conferred by the Act. The
whole issue is regarding the interpretation of Section 7 of the Act 1990, as to whether the
term ‘institution’ used therein means filing/presenting/submitting the chargesheet in the court
or taking cognizance”
The Court observed that:-
Thus, in view of the above, it is evident that the expression “Institution” has to be understood
in the context of the scheme of the Act applicable in a particular case. So far as the criminal
proceedings are concerned, “Institution” does not mean filing; presenting or initiating the
proceedings, rather it means taking cognizance as per the provisions contained in the
Cr.P.C.16
Further in case of Extra Judicial Execution Victim vs Union Of India And Ors.17 Supreme
Court has defined the meaning of ‘institution’ of the case as follow:-
“so far as criminal proceedings are concerned institution does not mean filing, presenting or
initiating proceedings but it means taking cognizance of the offence as per the provisions of
the CrPC and that cognizance means taking judicial notice of an offence by an application of
mind to the complaint or police report and thereafter proceeding under the provisions of the
CrPC...”
In one of the cases it was also held that ‘prior sanction’ is not required at the initial stage of
legal proceeding. A FIR alleging cognizable offence is enough for police to initiate
registration of FIR and investigation as held by GHC in Union of India and Others vs. State
of Manipur and others18. The same judgment also ruled that the sanction could be obtained at
the time of filing the charge-sheet or at the time of taking the cognizance by the concerned
Court. In another case, the Supreme Court held19 that the police have no option but to register
a case on first information report if it discloses commission of a cognizable offence.

15
CRIMINAL APPEAL NO. 257 of 2011, See also, In Jamuna Singh. v. Bhadai Shah, AIR 1964 SC 1541,
Martin and Harris Ltd. v. VIth Additional District Judge., AIR 1998 SC 492, In Devarapalli Lakshminarayana
Reddy. v. V. Narayana Reddy., AIR 1976 SC 1672
16
Ibid.
17
(2016) 14 SCC 578, See also
18
2008 Cri.L.J 32,2007 (4) GLT 581, decided on September 11,2007
19
State of Haryana vs. Bhajanlal, AIR 1992 SC 604

5|Page
So in the present case filling of F.I.R is not within the ambit of section 6 of the act hence the
F.I.R cannot be quashed with the help of section 7.

2.3. That when prima facie an offence is made out against the petitioner the FIR
shall not be quashed

It is humbly submitted by the respondents that, as observed by Hon’ble Supreme Court in


State of Bihar v. P.P.Sharma20 that when Prima Facie Offence is made out against the
petitioner, then the FIR shall not be quashed. It is humbly submitted by the Respondents that
a Prima Facie case is made out against the Petitioner and the Fir Shall be maintained.
It is further submitted by the Respondents that: -
1. Charge under Sec. 30221 is maintainable as the Commandant fired a shot which hit
one of the attackers who had caught hold of the JCO, and on sustaining a bullet injury,
the attacker
fell on the spot and died22 , the force which was needed to be used by Amy Personnel
shall be minimal23 but excessive force was used and death ensued and as such prima
facie case for murder is made out.
2. Charge under Sec. 30724 is maintainable as the Act which is contemplated by Sec. 307
is of such nature that if committed would result in death and the person committing

20
Supra, note 11
21
300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the
death is caused is done with the intention of causing death, or—
(Secondly) —If it is done with the intention of causing such bodily injury as the offender knows to be likely to
cause the death of the person to whom the harm is caused, or—
(Thirdly) —If it is done with the intention of causing bodily injury to any person and the bodily injury intended
to be inflicted is sufficient in the ordinary course of nature to cause death, or—
(Fourthly) —If the person committing the act knows that it is so imminently dangerous that it must, in all
probability, cause death or such bodily injury as is likely to cause death, and commits such act without any
excuse for incurring the risk of causing death or such injury as aforesaid. Illustrations
302. Punishment for murder.—Whoever commits murder shall be punished with death, or 1[imprisonment for
life], and shall also be liable to fine.
22
MOOT PROPOSITION
23
Supra 14
24
307. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such
circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and
if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to
such punishment as is hereinbefore mentioned. Attempts by life convicts.—2[When any person offending under
this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death.]

6|Page
such act would be guilty of murder.25 Here, the act committed by the Commandant i.e
shooting and causing one of the attackers, prima facie attracts Sec. 307
3. Charge under Sec. 32326 read with Sec 32627 is maintainable as the Act which was
committed by the Commandant i.e of Voluntary Causing Hurt by Shooting the
Attacker, prima facie attracts the offence and the nature of force which was used
against a person who was not attacking but has holding JCO28 was of excessive nature
which resulted into death on spot29 prima facie attracts sec. 326
4. Charge under Sec. 33630 is maintainable as the Force which was used by
Commandant against the person holding JCO was of negligent nature resulting to his
death on spot and as such goes against the judgement of Supreme Court of using
minimal force31 required in such disturbed area where law is in force. Hence, such act
Prima Facie attracts Sec. 336
5. Charges under Sec. 34, 120 B & 147 requires sufficient amount of evidence for
proving prima facie and as such these offences can only be prima facie proved in
Trial. Hence, the charges must be maintained unless the investigation is carried out
resulting in finding of evidence and putting it on trial for Judicial Scrutiny.

3. That The Constitutionality of A Law Is Not To Be Measured By Its


Object But By Its Effect

25
Sec. 307
26
323. Punishment for voluntarily causing hurt.—Whoever, except in the case provided for by section 334,
voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend
to one year, or with fine which may extend to one thousand rupees, or with both.
27
326. Voluntarily causing grievous hurt by dangerous weapons or means—Whoever, except in the case
provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing
or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or
any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive
substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to
receive into the blood, or by means of any animal, shall be punished with 1[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.
28
MOOT PROPOSITION
29
MOOT PROPOSITION
30
336. Act endangering life or personal safety of others.—Whoever does any act so rashly or negligently as to
endanger human life or the personal safety of others, shall be punished with imprisonment of either description
for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or
with both.
31
Supra Note 14

7|Page
It is humbly submitted by the Respondent that it is the Effect of the Law which determine its
Constitutionality and not the object, which it seeks to achieve. It is further submitted by the
respondents that the Object Test has been replaced by the Eleven Judges Bench of Hon’ble
Supreme Court in R.C.Cooper vs. Union of India32, wherein the court observed that:-

“[Precedent demonstrates that] it is not the object of the authority making the law impairing
the right of a citizen, nor the form of action that determines the protection he can claim: it is
the effect of the law and of the action upon the right which attract the jurisdiction of the
Court to grant relief. If this be the true view, and we think it is, in determining the impact of
State action upon Constitutional guarantees which are fundamental, it follows that the extent
of protection against impairment of a fundamental right is determined not by the object of the
Legislature nor by the form of the action, but by its direct operation upon the individuals
rights.”33

Thus, the Effect of Law on the Fundamental Right of a Citizen would be the true test of
determining its Constitutionality and not its object.

3.1. That It Is Beyond Legislative Competence To Enact Sec. 4(a) Of The SPAF Act,
2016

3.1.1. That “In Aid of The Civil Power” Means Direction Or Superintendence
Or Control By The State Government

It is humbly submitted by the Respondents that the words “in aid of the civil power” in entry
1 of the State List and in Entry 2A of the Union List implies that deployment of the armed
forces of the Union shall be for the purpose of enabling the civil power in the State to deal
with the situation affecting maintenance of public order which has necessitated the
deployment of the armed forces in the State postulates the continued existence of the
authority to be aided a law providing for deployment of the armed forces of the Union in aid
of the civil power in the State does not comprehend the power to enact a law which would

32
(1970) 1 SCC 248
33
Ibid.

8|Page
enable the armed forces of the Union to supplant or act as a substitute for the civil power in
the State in whose aid the armed forces are so deployed. Thus, the State shall have the
exclusive power to determine the purposes, the time period and the areas in which the armed
forces should be requested to act in aid of civil power and that the State retains a final
directorial control to ensure that the armed forces act in aid of civil power.

It is further submitted by the Respondents that, the Entry 2A was inserted with Article 257-A
which talked about

“Assistance to States by deployment of armed forces or other forces of the Union. –

(1) the Government of India may deploy any armed force of the Union or any other force
subject to the control of the Union for dealing with any grave situation of law and order in
any State.

(2) Any armed force or other force of any contingent or unit thereof deployed under clause
(1) in any State shall act in accordance with such directions as the Government of India may
issue and shall not, save as otherwise provided in such directions, be subject to the
superintendence or control of the State Government or any officer or authority subordinate to
the State Government.”34

The Article 275A if read with Article 2A gives “absolute independence” to the Armed Forces
from State Government or authorities subordinate to the State Government, where such
armed force are deployed in the aid of civil power of that State, but subject it to the exclusive
control of the Union. Thus, the intention of legislature behind deleting the article through 44th
Amendment was that the “armed forces of the union” can never aid the civil powers of the
state, if they are not subject to the State Government or authorities subordinate to the State
Government and absolute independence to the armed forces will supplant and substitute the
Civil Powers of the State rather than give aid to it. Hence, as soon as the whole o any part of
a State has been declared to be disturbed area under Section 3 of the Central Act members of
armed forces get independent power to act under Section 4 of the Central Act and to exercise
the said power for the maintenance of public order independent of the control or supervision
of any executive authority of the state. Thus, Sec. 4(a), 4(b), 4(c), 4(d) & 4(e) being outside
the Legislative competence must be struck down as Unconstitutional.

34
42nd Amendment to the Indian Constitution, See also Naga People Movement of Human Rights v Union of
India

9|Page
3.1.2. That The Parliament Has No Legislative Competence To Vest Army With
The Power To Maintain ‘Public Order’

It is humbly submitted by the Respondent that Bharat has no Power to enact laws on those
subject which came exclusively under the State list35 and neither can it give such power,
which is exclusively vested in the State list, to any authority mentioned in Union list or which
Union has exclusive control. The power to maintain ‘Public Order’ falls exclusively in the
State list36 and any power given to maintain such order can only be by the State of Dras and
not by the Union. Sec. 4(a) of the Special Powers to the Armed Forces Act (SPAFA), 2016
mentions that:-

“Any commissioned officer, warrant officer, non-commissioned officer or any other person
of equivalent rank in the armed forces may, in a disturbed area,—

(a) if he is of opinion that it is necessary so to do for the maintenance of public order,


after giving such due warning as he may consider necessary, fire upon or otherwise
use force, even to the causing of death,…”37
The power to cause death or fire upon any person in “order to maintain Public Order” cannot
be given to the Armed Forces of the Union. As the Union of India has no power to vest armed
forces with power to maintain ‘Public Order’ but can only give such Power which is
necessary ‘to aid the Civil Power’ in the State and the power to maintain ‘Public Order’
falling exclusively within the State Legislature and can only be vested by State Legislature
sec. 4(a) has to be struck down as Unconstitutional38. The motive or the object of providing

35
Union of India v H.S.Dhillon, AIR 1972 SC 1061, Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225,
Jaora Sugar Mills (P) Ltd. Vs. State of Madhya Pradesh & ors., AIR 1966 SC 416, Cibatul Limited., P.O. Atul
vs. Union of India & ors., 1978 (2) ELT 68 Guj, All India Federation of Tax Practitioner & Ors. V. Union of
Indian & Ors., Appeal (civil) 7128 of 2001, I.T.C. Limited vs. Agricultural Produce Market Committee & ors.,
Appeal (civil) 6543 of 2001,
36
Article 248 of the Indian Constitution
37
Section 4(a) of Armed Forces Special Power Act, 1958
38
Namit Sharma v. Union of India, WRIT PETITION (CIVIL) NO. 210 of 2012 (India). See also Rakesh Kholi’s
case, (2012) 6 SCC 312 (India). “A law made by Parliament or the legislature can be struck down by Courts on
two grounds and two grounds alone viz. (1) lack of legislative competence, and (2) violation of any of the
fundamental rights guaranteed in Part III of the Constitution or of any other Constitutional provision. There is
no third ground .”

10 | P a g e
power beyond legislative competence is irrelevant.39 Thus, it attracts the Doctrine of
Colourable Legislation which has been described by Hon’ble Supreme Court, wherein it
observed that:-

“The idea conveyed by the expression is that although apparently a legislature in passing a
statute purported to act within the limits of its powers, yet in substance and in reality it
transgressed these powers, the transgression being veiled by what appears, on proper
examination, to be a mere presence or disguise.”40

3.2. That The Sec. 4(d) Violates Right To Privacy Guaranteed Under Right To Life

3.2.1. That The “Enter And Search” Without Warrant Violates Right To
Privacy

It is humbly submitted by the Respondents that after the Judgement of Hon’ble Supreme
Court in K.S.Puttuswamy v. Union of India41 Right to Privacy has been given the status of
Fundamental Right flowing from the Right to Life. Thus, to test down the Constitutionality of
any act, provision or section both the act and the right have to be read together if such act,
provision or section violates the Fundamental Right of Pivacy, then it shall be struck down as
Unconstitutional. Sec. 4(d) mentions that:-

“enter and search, without warrant, any premises to make any such arrest as aforesaid
or to recover any person believed to be wrongfully restrained or confined or any property
reasonably suspected to be stolen property”

39
K.C. Gajapati Narayana Deo And Other v. The State Of Orissa:-
The doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of
the legislature. The whole doctrine resolves itself into the, question of competency of a particular legislature to
enact a particular law.
If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant.
On the other hand, if the legislature lacks competency, the question of motive does not arise at all. Whether a
statute is constitutional or not is thus always a question of power
40
Ibid.
41
[Writ Petition (Civil) No.494 of 2012]

11 | P a g e
The Power to “enter and search, without warrant any premises” gives unbridled power to the
army to search any place and to enter any premise at any time without the consent of the
person residing in such premise, constitute the utmost breach of Person’s Constitutionally
Guaranteed Right to Privacy.

3.2.2. That The Procedure Is Not Just, Reasonable And Fair

It is humbly submitted by the Respondents that the “Procedure established by Law” for
entering and searching the premises for making “arrest or to recover” must be Just, Fair &
Reasonable42 but here it suffers from manifest arbitrariness and unreasonableness. In
Maneklal v. M.G.Makwana43, the Supreme Court observed,

“Restrictions on the exercise of a fundamental right shall not be arbitrary, or excessive,


or beyond what a required in the interest of the general public. The reasonableness of a
restriction shall be tested both from substantive and procedural aspects. If an
uncontrolled or unguided power is conferred, without any reasonable and proper
standards or limits being laid down in the enactment, the statute may be challenged as
discriminatory”44

and has to be struck down as Unconstitutional.

The aforesaid section gives “uncontrolled and unguided power” to the armed forces of the
Union to make arrest and search the premises without the warrant and without the
superintendence or direction or control of the State authority. Thus, making it independent
and not being subject to any authority under the State Government for taking any action in
disturbed areas. Hence, not aiding but substituting and supplanting the ‘Civil Powers’ of the
State. Further, it does not provide any reasonable standard to make “enter or search” any
premises as the army can make arrest just on a mere “believe” or “suspicion” of existence of
arms or ammunition or stolen property. Further, the act does not provide any time period to
review the need for existence of such Law. So, it can be continued for an unlimited time
period. Thus, applying the effect test, the aforementioned section inevitably violates right to
privacy of individual living in the area where the law is in force. Supreme Court in Extra

42
Maneka Gandhi v. Union of India 1978 SCR (2) 621
43
AIR 1967 SC 1373
44
Ibid.

12 | P a g e
Judicial Execution Victim Families Association & Anr. v. Union of India & Anr.45 remarked
that:-

“If members of our armed forces are deployed and employed to kill citizens of our
country on the mere allegation or suspicion that they are ‘enemy’ not only the rule of law
but our democracy would be in grave danger…”

Preserving the rule of Law and recognition of individual liberties constitute an important
component of its understanding of security. At the end of the day, they strengthen its spirit
and allow it to overcome its difficulties.46

Thus, the existence of “Suspicion” however reasonable may be is not any reasonable and
proper standard to validate the Constitutionality of the Statue because it has the effect of
violation of Human Rights which has been exclusively protected under Protection of Human
Rights Act, 1950 enacted by the Parliament.

3.3. That The Sec. 4 and The Whole Act Shall Be Struck Down As Unconstitutional
On The Basis Of Doctrine Of Severability

It is humbly submitted by the Respondents that, Sec. 4(a) and sec 4(d) being violative of
Constitutional provisions must be struck down as Unconstitutional. Further, according to the
Doctrine of Severability47 even when the provision which are valid and distinct and separate
from which are invalid, if they all form part of a single scheme which is intended to be
operative as a whole, then also the invalidity of a part will result in the failure of the whole.
Thus, section 4 even though having different and valid part has been intended by the
legislature to be operative as whole and as such, sec. 4 in toto should be held
unconstitutional. Further, Sec. 4 being the heart and the operative part of the whole act and
being unconstitutional in toto nothing remains in the act and as such it was never intended by

45
WRIT PETITION (CRIMINAL) NO. 129 OF 2012
46
Ibid.
47
R.M.D.Chamarbaugwalla v Union of India, AIR 1957 SC 628, State of M.P. v. Ramojirao Shinde, AIR 1968
SC 1053, A.K.Gopalan v. State of Madras, AIR 1950 SC 27, State of Bombay v. F.N.Balsara, AIR 1951 SC
318, State of Bihar v. Kameshwar Singh, AIR 1952 SC 252, Corpn. Of Calcutta v. Calcutta Tramsways Co.
Ltd., AIR 1964 SC 1279, Motor General Traders v. State of A.P., AIR 1984 SC 121, Kihota Hollohan v.
Zachillu, AIR 1993 SC 412, R.C.Kappor v. Union of India, AIR 1970 SC 564, Ashok Kumar Thakur v. Union of
India, (2008) 6 SCC 1.

13 | P a g e
the Legislature that the SPAFA, 2016 would exist without sec.4 being in existence, the whole
act shall be turned down as Unconstitutional.

It has been humbly submitted that the special power to armed forces act 2016 has been
contravening not only the Constitutional framework but also the international conventions
that Bharat has an obligation to comply with, the provisions and application of the APSPA
violates the International Covenant on Civil and Political Rights (the “ICCPR”),

State of Bharat has signed ICCPR and thus took over the responsibility of protecting the
rights of the citizens of our country as per the provisions of this covenant. Under Article 2 of
ICCPR,48 all citizens enjoy the rights provided to them by this covenant, which also includes
the right to remedy for those who face violation of their rights. Article 4 of the ICCPR49
administers the abeyance of the certain rights given by the covenant. However, article 6, 7, 8,
9, 11, 15, 16, and 18 are the non- derogable rights under ICCPR and AFSPA clearly violates
most of them. It violates Article 6 which assures the right to life, Article 7 which forbids
torture.

The AFSPA Act under Section 4 (a) gives an officer the liberty to shoot when there is any
doubt of having a weapon or any kind of unlawful assembly. The interpretation of weapon
can be done in a very broad sense as it can be defined as anything which has the ability and
competence of being used as a weapon, and as held by supreme court in Extra Judl.Exec.
Victim Families ... vs Union of India & Anr50 “every person carrying a weapon in a disturbed
area cannot be labelled a militant or terrorist or insurgent” and be killed without any inquiry.

So it results in abuse of power by armed forces which is also the violation of article 6 of
I.C.C.P.R and THE PROTECTION OF HUMAN RIGHTS ACT, 199351.

4. That the immediate Withdrawal of the troops from Dras is the need of
the Hour

48
ICCPR 1966, art 2.
49
ICCPR 1966, art 4.
50
(2016) 14 SCC 578(2)
51
THE PROTECTION OF HUMAN RIGHTS ACT, 1993, No. 10 of 1994, Act of Parliament, 1994.

14 | P a g e
It is most humbly submitted before the Supreme Court that the withdrawal of troops from
dras is need of the hour, as it is mocking the democratic process and apart from symbolizing a
failure of the civil administration and the armed forces.

4.1. Armed Forces should be deployed to protect the interests of the citizens not
hamper them.

Supreme Court in the case of Extra Judl.Exec. Victim Families ... vs Union of India & Anr52
held that ordinarily our armed forces should not be used against our countrymen and women”
and that “every person carrying a weapon in a disturbed area cannot be labelled a militant or
terrorist or insurgent” and be killed without any inquiry.
“In our opinion, it would be indicative of the failure of the civil administration to take
effective aid of the armed forces in restoring normalcy or would be indicative of the failure of
the armed forces in effectively aiding the civil administration in restoring normalcy or
both,”53
The court also held that an internal disturbance is not equivalent to or akin to a war-like
situation,” “democracy would be in grave danger” if armed forces were permitted to kill
citizens on mere allegation or suspicion that they are enemies of the state. “This is the
requirement of a democracy and the requirement of preservation of the rule of law and the
preservation of individual liberties54.
Now in the present case the Bharatian government passed a new legislation on 1st April,
2016, which was called the Special Powers to the Armed Forces Act (SPAFA), 2016, and
heavy military and para-military support was deployed in the states adjoining the borders
with the three hostile nations.
In the case of Naga People’s Movement of Human Rights v. Union of India55 held that If
members of our armed forces are deployed and employed to kill citizens of our country on
the mere allegation or suspicion that they are ‘enemy’ not only the rule of law but our
democracy would be in grave danger.
Dras is one of the state where act is in place and soon after the introduction of the act terrorist
activities in Dras witnessed multifold increase. The Ministry of Defence in its Annual Report,
52
(2016) 14 SCC 578(2)
53
Ibid.
54
Ibid
55
(1998) 2 scc 109

15 | P a g e
2017, declared several achievements of the army contingents deployed in the five states of
which the achievements of RajRif were prominent.
“RajRif alone foiled 425 terrorist intrusion attempts in the past year. 300 armed terrorists
were captured and another 205 terrorists were killed in counter operations by RajRif.
the army was also occupied in sanitising some disturbed areas of Dras including the area
populated by the Azaad tribe, as there were intelligence reports received by the army which
said that Azaad tribe is involved in harbouring and giving shelter to cross-border intruders,
who train the young tribals and prepare them to launch armed attacks against the Bharatian
army. Regular searches were being conducted leading to reports of ill-treatment of women
and children. There were also reports of killing of tribals by the army.
Now in the present case after killing of so many terrorist the situation became such that all
the terrorist members have to take support of the local civilians, so it means that situation has
become very better than the time when act was implemented, so now the situation can be
easily handled by local police and other civil authorities, and as this courts in one of it’s
judgement clearly held that over use of armed forces results in mocking of democratic rights.
Hence removing armed forces from state of Dras is need of the hour.

5. That the Investigation of the Incident must not be handed over to


Independent agency

It is humbly submitted before the Hon’ble court that the investigation of the incident must not
be handed over to independent agency rather the investigation must be carried out by the
police of the Police Station where the FIR was lodged. In this case there has been no
proceeding after the FIR so, it is contended that instead of handing over the investigation to
any independent agency the police must conduct the investigation and submit its reports.

5.1. That Independent Agencies is handed over the investigation process in cases
where the prior investigation was biased.

It is humbly submitted before the Hon’ble court that the investigation of any incident can be
handed over to an independent agency in cases where the prior investigation was biased or
any serious irregularity had taken place in the investigation. The Supreme Court in the cases

16 | P a g e
of K. Chandrasekhar vs State of Kerala & Ors.56; Ramachandran vs R. Udhayakumar &
Ors.57; Mithabhai Pashabhai Patel & Ors. vs State of Gujarat58; and Kishan Lal vs
Dharmendra Bafna59 has emphasised that where the court comes to the conclusion that there
was a serious irregularity in the investigation that had taken place, the court may direct a
further investigation under Section 173(8) Cr.P.C. Also in the case of S.N. Sharma vs Bipen
Tiwari & Ors.60 the Apex Court observed that Unless an extra ordinary case of gross abuse of
power is made out by those in charge of the investigation, the court should be quite loathe to
interfere with the investigation, a field of activity reserved for the police and the executive.
Thus, in case of a mala fide exercise of power by a police officer the court may interfere.
Further in Kashmeri Devi vs Delhi Administration & Anr.61 The Court held that where the
investigation has not been conducted in a proper and objective manner it may be necessary
for the court to order for fresh investigation with the help of an independent agency for the
ends of justice so that real truth may be revealed. In the said case, this court transferred the
investigation to the CBI, after coming to the conclusion that investigation conducted earlier
was not fair. In the present case only the FIR has been lodged against the Lt. Col. Hoshiyar
Singh and the JCO62, no investigation has taken place and it would be wrong to hand over the
investigation of the incident to an independent agency before giving the Police a chance.
Hence, it is pleaded before the court that the investigation must not be handed over to any
independent agency.

5.2. That the investigation can be handed over to independent agency in exceptional
and extraordinary cases and cases where the high police officials are involved in
the said crime.

It is humbly submitted before the Court of Law that the investigation of an incident can be
directed to an independent agency only in extraordinary and exceptional situations and in
cases where high police officials are involved in the said crime. It can safely be concluded
that in an appropriate case when the court feels that the investigation by the police authorities

56
(1998) 5 SCC 223
57
(2008) 5 SCC 413
58
(2009) 6 SCC 332
59
(2009) 7 SCC 685
60
AIR 1970 SC 786
61
AIR 1988 SC 1323
62
Moot Proposition ¶ 13

17 | P a g e
is not in the proper direction and in order to do complete justice in the case and as the high
police officials are involved in the said crime, it was always open to the court to hand over
the investigation to the independent agency like CBI.63 In the instant case no high police
official is involved in the said crime, thus there is no chance of the manipulation of the
investigation process moreover, the Police has not been given any chance to conduct the
investigation thus it cannot be said that they failed to do proper investigation.
In the case of Secretary Minor Irrigation & Rural Engineering Services, UP & Ors. vs.
Sahngoo Ram Arya & Anr.64 The Supreme Court has stated that the High Court has power
under Article 226 to direct an inquiry by CBI but that power will have to be exercised only in
cases where there is sufficient material to come to a prima facie conclusion that there is need
to make such an inquiry.
To transfer a case to independent agencies like CBI there has to be sufficient material to
justify such transfer. In this case, except the pleadings, which are general in nature, no
material has been brought on record by the petitioners to justify their plea of transfer to the
CBI. The transfer of investigation to CBI or other agency cannot be done as a matter of
routine or merely because a party makes such allegations.65
It is further held by the Supreme Court that an aggrieved person can only claim that the
offence he alleges must be investigated properly but has no right to claim investigation by a
particular agency like the CBI. The Supreme Court held that no one can insist that an offence
can be investigated by a particular agency.66 The Supreme Court has also stated that mere
allegations made against the police would not justify transfer of investigation unless there is
some material on record to support the allegations.67
In the case at hand as well no one can claim that investigation should be handed over to an
independent agency. It is the discretion of the court and the court also directs the
investigation to an independent agency when the prior investigation by the police is faulty or
the case is exceptional or extraordinary or the matter involves a high ranked official of the
police accused of the said crime. In the instant case none of this is there hence it is requested
to the bench that they do not handover the investigation to an independent agency.

63
Rubabbudidin Sheikh vs State of Gujarat & Ors. (2010) 2 SCC 200
64
(2002) 5 SCC 521
65
ibid
66
Sakiri Vasu v. State of Uttar pradesh & Ors (2008 [1] KLT 724)
67
ibid

18 | P a g e
6. That compensation should be provided to the family of the victim, killed
in the firing conducted by the army

It is humbly submitted before the Hon’ble Court that the family of the victim killed in the
firing conducted by the army are entitled to monetary compensation. The family of the victim
did not wrong any one and by the killing of a member of their family their rights are also
violated and they should be compensated for the same. Moreover in an earlier report
submitted by the NHRC it was concluded that the Army in Dras has resorted to excess use of
68
force and is abusing its power in the state. Thus, the report of army should be taken into
consideration and the family of the victim should be granted proper compensation.

6.1. That the Army had used excessive force on the victim.

In the case at hand the Commandant had fired a shot at the victim without giving due
warning69 while it is clearly mentioned in the Section 4(a) of the Special Powers to the
Armed Forces Act (SPAFA), 2016 that due warning as considered necessary must be given
before using any sort of force against any person acting in contravention of law.70 Here, the
act of the army official was in contravention to this provision hence, the family of the victims
are entitled to compensation.
It does not matter whether the victim was a common person or a militant or a terrorist, nor
does it matter whether the aggressor was a common person or the state. The law is the same
for both and is equally applicable to both. This is the requirement of a democracy and the
requirement of preservation of the rule of law and the preservation of individual liberties.71
Thus, for the preservation of Human Rights the family of the deceased must be awarded
compensation.

68
Moot Proposition ¶ 13
69
Moot Propostition ¶ 12
70
Section 4(a) of the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 (No. 21 of 1990):
if he is of the opinion that it is necessary so to do for the maintenance of public order, after giving such due
warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against
any person who is acting in contravention of any law or order for the time being in force in the disturbed area
prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used
as weapons or of fire-arms, ammunition or explosive substances
71
Extra Judicial Execution Victim Families Association (EEVFAM) & Anr. Vs Union Of India & Anr. (2013) 2.
SCC 493

19 | P a g e
Moreover, there is a fair chance that the murder of the victim was a case of fake encounter. In
a particular case petition for 1528 fake encounters was filed and the court held that if after
proper investigation it is found that the encounters were fake, compensation should be
awarded.72
In another case a person suffered death in the custody of the Army. The National Human
Rights Commission had recommended that the government of India pay a compensation of
Rupees five lakhs to the next of kin of Burman Moran who died on the 19th February, 2003
due to torture by the personnel of 6th Jat Regiment, Assam. Burman Moran was apprehended
by the Army on the 5th February, 2003 on suspicion on having links with ULFA extremists.
On the next day, Hawaldar, Bunty Ram of the 6th Jat Regiment where FIR No. 18/2003
under various sections of the IPC was registered against him, produced him at police station
Doodooma. When he was sent to the jail on the 8th February, he had multiple injuries on his
body which were allegedly caused by the Army personnel and succumbed to them. The
Deputy Commissioner, Dibrugarh, Assam filed a complaint in the matter to the NHRC. After
inquiry, the Commission's vide proceedings under the case no. 158/3/2002-2003-cd dated
29th April, 2009 came to the conclusion that Burman Moran died, prima-facie, due to torture
by the Army personnel. A show cause notice was issued to the Secretary, Ministry of
Defence, Government of India. No response to the show cause notice having been received, a
reminder was issued to him on the 30th July, 2009 saying that in case no response was
received, the Commission would presume that the government had nothing to say against the
notice. Subsequent to this, the Ministry of Defence sought time up to the 25th September,
2009 for submitting a report in the matter. However, as there was no response till the 27th
October, 2009, the Commission has presumed that the Ministry of Defence has nothing to say
against the show-cause notice and recommended through the Defence Secretary that the
Government of India pay the compensation to the next of the kin of the deceased Burman
Moran.73
Considering the above contentions the family of the victims must be awarded monetary
compensation.

72
ibid
73
Case No.-158/3/2002-2003-cd dated 29th April, 2009

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PRAYER FOR RELIEF

Wherefore in light of the issues raised, arguments advanced, authorities cited and reasons
given, it is humbly prayed that this Hon’ble Court may be pleased to hold, adjudge and
declare that:

1. The instant Writ Petition is not maintainable;


2. The F.I.R against commandant and J.C.O is not fit to be quashed, hence not to be
quashed.
3. The special power to the armed forces act, 2016 is unconstitutional and fit to be
quashed and withdrawn from Dras.
4. The immediate withdrawal of the armed forces is need of the hour, and hence they
should be removed.
5. The family of the victim should be granted monetary compensation.
6. The investigation of the incident should not be given to independent agency and pass
any other order it may deem fit in the interest of justice, equity and good conscience.

FOR WHICH THE RESPONDENTS SHALL FOREVER PRAY

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSELS FOR RESPONDENTS

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