Ou Moot Respondent Final 2019 PDF

TEAM CODE: JM06
UNIVERSITY COLLEGE OF LAW, OSMANIA UNIVERSITY
2ND JUSTITIA MOOT COURT COMPETITION, 2019
IN THE HONOURABLE HIGH COURT OF TRILINGA
UNDER ARTICLE 226 OF THE CONSTITUTION OF BHARATISTAN
WRIT PETITION NO. --------- OF 2019
IN THE MATTER OF:
1. PRESIDENT OF ANDHRADESAM
2. SOFTGRID MANAGEMENT…...………………………………..PETITIONERS
V.
STATE OF TRILINGA…………………………………………..RESPONDENTS
UPON SUBMISSION TO THE HON‟BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE HIGH COURT OF TRILINGA
~Memorial for the Respondents~

TABLE OF CONTENTS
Table of Contents………………………………………………………………………….02
List of Abbreviations……………………………………………………………………...03
Index of Authorities……………………………………………………………………….04
Statement of Jurisdiction………………………………………………………………….05
Statement of Facts………………………………………………………………………...06
Issues Raised……………………………………………………………………………...08
Summary of Arguments…………………………………………………………………..09
Arguments advanced ……………………………………………………………………..11
Prayer……………………………………………………………………………………...25
Memorandum for the Respondents 2

LIST OF ABBREVATIONS
Petitioners Softgrid management and the President of

Andhradesam
Respondents State of Trilinga
SC Supreme Court
AIR All India Reporter
Art. Article
Ano. Another
Ltd. Limited
HC High Court
v. Versus
Ors. Others
SCC Supreme Court Cases
SCR Supreme Court Reporter
GFR General Financial Rules
Ed/edn Edition
Ch. V. Chapter. Verse
ILR Indian Law Reporter
Sec Section
P. Page Number

INDEX OF AUTHORITIES
1. THE CONSTITUION OF INDIA, 1950.

2. INFORMATION TECHNOLOGY ACT, 2000
3. AADHAAR ACT, 2016
4. REPRESENTATION OF PEOPLE‟S ACT, 1951
5. GENERAL FINANCIAL RULES, 2017
BOOKS REFERRED
1. CONSTITUTION OF INDIA, M.P. JAIN.

2. CONSTITUTION OF INDIA, D.D. BASU.
WEBSITES REFERRED
1. Manupatra Online Resources http://www.manupatra.com.

2. SCC Online http://www.scconline.co.in.
3. Indian Kanoon https://indiankanoon.org/.
4. Advocate Khoj www.advocatekhoj.com
5. Legal Crystal www.legalcrystal.com
6. Live law www.livelaw.com.

STATEMENT OF JURISDICTION
The Petitioners have approached this Hon‟ble Court under the Writ jurisdiction as per Article
226 of the Constitution of Bharatistan and also under the inherent powers vested with the
Hon‟ble High Court under Section 482 of the Code of Criminal Procedure.

STATEMENT OF FACTS
BACKGROUND
1. Bharatistan is a Federal state in Asia and it consists of 30 states and 10 union
territories. The National Constitution of the country guarentees several fundamental
rights and freedom to the citizens, some of which are available to the non citizens.
Right to life and Personal liberty is a fundamental right conferred on all the persons in
Bharatistan. Freedom of speech and expression is available only to its citizens. The
country has a large population consisting of approximately 140 crores of people. The
Federal Government, in order to authenticate the identity of all the citizens, decided to
provise each citizen, a unique identity called, “Sadhar”.
2. Sadhar is given to all the citizens in both soft and hard copies. It consist of each
citizens‟ name, parents name, date of birth, educational qualification, woek details,
permanent address, marital status etc., All the information is secured with biometrics.
All these details of the citizens have been stored on a secure database under the
control of Sadhar Authority of Bharatistan. Further, the mandate given to the Sadhar
Authority is to prevent the data from falling into private hands, including private
persons, organizations and even unrelated government authorities.
3. Andhranadu is one of the coastal states in Bharatistan which is under the rule of
regional political party „Andhra Desam‟. The main opposition party in Andhranadu is
also an regional party called Andhra Congress. In view of the general elections
scheduled to be held within the next two months, there is a surcharged political
enivironment in Andhranadu. Both the ruling and opposition parties are determined to
win the election at any cost. One of the neighbouring states of Andhranadu is Trilinga.
Trilinga is a newly formed state, carved out of Andhranadu about five years back,
under the State Reorganization Act which permitted both the states to use the catipal
of Trilinga, Bhagyanagara as the common capital for a period of 10 years.
THE DISPUTE
4. Mr. Vaghesh, an active supporter of the Andhra congress, working in a software

company in Bhagyanagara came to know that all the particulars of voters in
Andhranadu are available with one software company in Bhagyanagara called
“Softgrid” and that such company was was appointed by Andhra Desam Government
in Andhranadu, for maintaining the data the data of all the residents and voters in the
state for ascertaining the success in implementation of the State Government
Schemes.
5. The data of all the voters mainteained by softgrid contained identical information
available with the Sadhar Authority of the Federal Government and that the entire
information, including the sensitive information of individual voters was made
available to the ruling party in Andhranadu. He also found out that the same data was
used by the ruling party workers to apply for deletion of the names of the voters
known to be the supporters of the main opposition party i.e., The Andhra Congress in
Andhranadu. His own vote was deleted by the Election Comission though he had not
applied for deletion from the list.
6. Vaghesh lodged a complaint with the police of Bhagyanagara against Softgrid

company, its Managing Director and other Directors, alleging that theft of data of
about 3 croroes people of Andhranadu, was committed by Softgrid and its
management and that the same has been misused by unintended beneficiaries for
selfish purposes.
7. Simultaneously, he also lodged a complaint with the Election Comission of

Bharatistan and The Sadhar Authority also seeking to take action against Softgrid and
the ruling party of Andhranadu i.e., Andhra Desam. Acting upon the complaint, the
Bhagyanagara police arrested the Managing Director of Softgrid and issued notices to
the President of the Andhra Desam to appear before them to answer certain questions.
JUDICIAL TREATMENT
8. Aggrieved by the action of the police, Softgrid Management and the President of
Andhra Desam filed a writ petition before the Moot Court (similar to the Hon‟ble
High Court of Trilinga) to quash the proceedings. In view of the larger issues
involved, the matter was referred to a Constitutional Bench of the Court to decide the
following issues.

ISSUES RAISED
ISSUE NO. I
WHETHER THE CITIZENS WHOSE DATA WAS ALLEGEDLY STOLEN,

HAVE A RIGHT TO DATA PRIVACY?
ISSUE NO. II
WHETHER THE ALLEGED DATA THEFT FOR ULTERIOR MOTIVES, IS

AN OFFENCE OR A CIVIL WRONG UNDER ANY LAW IN FORCE IN THE
TIME BEING, IN THE REPUBLIC OF BHARATISTAN OR ANY OF ITS
STATES?
ISSUE NO. III
WHETHER THE BHAGYANAGARA POLICE HAVE JURISDICTION TO

REGISTER THE CRIMINAL CASE AND PROSECUTE THE SOFTGRID
MANAGEMENT IN BHAGYANAGARA?
ISSUE NO. IV
WHO ELSE HAS THE JURISDICTION TO COMPLAIN ABOUT THE

DATA THEFT, IF IT IS AN ACTIONABLE WRONG?
ISSUE NO. V
WHETHER THE RESPONDENTS IN THE CASE ARE ENTITLED TO ANY

RELIEF?

SUMMARY OF ARGUMENTS
1) WHETHER THE CITIZENS WHOSE DATA WAS ALLEGEDLY STOLEN,

It is humbly submitted by the petitioner that the supreme court of India in the case of
Justice „K.S. Puttaswamy (retd) v. Union of India & Ors. 2017’ held that the right to
privacy is an intrinsic part of the fundamental right to life and personal liberty under Art.
21 of the constitution of India. In this regard, the court has recognized „Informational
Privacy‟ as an important aspect of right to privacy which can claimed against state and
non-state actors.
2) WHETHER THE ALLEGED DATA THEFT FOR ULTERIOR MOTIVES, IS

STATES?
It is humbly submitted that alleged data theft is an offence by taking the influence
from the definition of data from IT Act 2000 and that of theft from section 378 of
IPC. The Sadhar authority also mandates maintenance of information privacy.
3) WHETHER THE BHAGYANAGARA POLICE HAVE JURISDICTION TO
The Bhagyanagara police have the jurisdiction to register and prosecute the softgrid
management in Bhagyanagara since it is located within the territorial limits of the city
of Bhagyanagara. Also, since the complaint lodged by Vaghesh discloses the
commission of a cognizable offence, any police officer irrespective of the territorial
jurisdiction can investigate and set the criminal law in motion.
4) WHO ELSE HAS THE JURISDICTION TO COMPLAIN ABOUT THE DATA
THEFT, IF IT IS AN ACTIONABLE WRONG?
It is humbly submitted before the Hon‟ble court that authorities such as:
A. Controller of certifying authorities (C.C.A) appointed by the central government
under section 17 of Information Technology act
B. Adjudicating Officer appointed by the central government under section 46 of
Information Technology act

C. The Cyber appellate tribunal established under section 48 of the Information

technology act
D. Police Officers
5) WHETHER THE RESPONDENTS IN THE CASE ARE ENTITLED TO ANY
RELIEF?
It is humbly submitted before the Hon‟ble Court that the respondents are entitled to
the relief of peaceful and unhindered criminal investigation. Therefore, the petitioners
should be taken into judicial custody, the President of Andhra Desam has to be issued
with an arrest warrant for not appearing before the police even after issuing notices
and they should be prevented from absconding from the country for gathering proper
evidence.

ARGUMENTS ADVANCED
1) WHETHER THE CITIZENS WHOSE DATA WAS ALLEGEDLY STOLEN,

It is humbly submitted before this Hon‟ble court that the Right to Privacy has been
recognized as a fundamental right and is an intrinsic part of the right to life and
personal liberty under Art 21 of constitution of India.
1.1 Data privacy is an intrinsic part of the right to privacy under Art 21 of the
Constitution of India
I. The Supreme Court of India delivered a landmark judgment in the case of Justice
K.S. Puttaswamy (Retd.),and Anr. v. Union of India & Ors1, wherein it was held
that the right to privacy is an intrinsic part of the fundamental right to life and
personal liberty under Article 21 (in particular and in all fundamental rights in Part
III which protect freedoms in general) of the Constitution of India. It was held that
the Constitution of India must evolve with the circumstances of time to meet the
challenges thrown up in a democratic order governed by the rule of law and that
the interpretation of the Constitution of India cannot be frozen on the perspectives
present when it was adopted.
II. The Supreme Court acknowledged that the concept of the right to privacy has
evolved from the basic right to be let alone, to a range of negative and positive
rights. The Court recognized 'informational privacy' as an important aspect of the
right to privacy that can be claimed against state and non-state actors, but such a
right is not an absolute right and may be subject to reasonable restrictions. Further,
the Court has laid down a test to limit the possibility of the State clamping down
on the right, i.e., such an action must be sanctioned by law, it must be necessary to
fulfil a legitimate aim of the State, the extent of the State interference must be
'proportionate to the need for such interference' and there must be procedural
safeguards to prevent the State from abusing its power.
1
Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors, AIR 2015 SC 308 1.

III. Law which encroaches upon privacy will have to withstand touchstone of
permissible restrictions on fundamental rights. In context of Art 21 an invasion of
privacy must be justified on basis of law which stipulates procedure which is fair
and reasonable. An invasion of life or personal liberty must meet three-fold
requirement of (i) Legality, which postulates existence of law (ii) need, defined in
terms of legitimate state aim (iii) proportionality which ensures rational nexus
between objects and means adopted to achieve them.
IV. In District Registrar and Collector, Hyderabad v Canara Bank2, The court held
that the right to privacy is considered as a right which attaches to the person and
information provided by an individual to a third party (in that case a bank) carries
with it a reasonable expectation that it will be utilized only for the purpose for
which it is provided. Secondly, Parting with information (to the bank) does not
deprive the individual of the privacy interest. The reasonable expectation is allied
to the purpose for which information is provided. Thirdly, while legitimate aims of
the state, such as the protection of the revenue may intervene to permit a disclosure
to the state, the state must take care to ensure that the information is not accessed
by a private entity. The decision in Canara Bank has thus important consequences
for recognizing informational privacy.
V. In “Justice K.S Puttaswamy (Retd.) and Anr v. Union of India and ors”, Justice
DY Chandrachud rightly observed that “Right to Privacy” has been held to be
more than just physical right as it includes privacy in information about one‟s
identity”. Privacy means the right to control the communication of personally
identifiable information about any person.
VI. R.F. Nariman held in the case KS Puttaswamy (Retd.) and Anr. V. Union of India
and Ors. That “Informational privacy does not deal with the individual‟s body, but
rather with the individual‟s mind. Consequently, as part of one‟s right to privacy,
one must have complete control over the dissemination of information that is
personal. Individuals establish boundaries that “are not only physical but also
informational. It is therefore essential that “the individual knows what the data is
being used for, with the ability to correct and amend it. “Informational control
2
District Registrar and Collector, Hyderabad v Canara Bank 2005 1 SCC 496

empowers the individual to use privacy as a shield to retain personal control over
information pertaining to the person.” Informational privacy, thus, has been
conceptualized as a positive and individualistic right, which grants complete
control to the individual over information pertaining to her. No state or non-state
actors can collect, store or disseminate individual information without
prior consent i.e. by giving the subject control over the decision to part with the
information”.
VII. Every individual should have a right to be able to exercise control over his/her own
life and image as portrayed to world and to control commercial use of his/her
identity. Right of an individual to exercise control over his personal data and to be
able to control his/her own life would also encompass his right to control his
existence on internet. The right to control dissemination of personal information in
physical and virtual space amounts to a larger part of right to privacy. Further, state
must ensure that information is not used without consent of users and that it is used
for purpose and to extent it was disclosed.
VIII. In recognizing privacy as fundamental constitutional value was a part of India‟s

commitment to safeguard human rights under international law under the
International covenant of civil and political rights (ICCPR) which found reference
in domestic law under the protection of human rights, 1993. The ICCPR
recognizes a right to privacy. The Universal Declaration of Human Rights too
specifically recognizes a right to privacy. The Judgment has held that
constitutional provisions had to be read and interpreted in a manner such that they
were in conformity with international commitments made by India.

2) WHETHER THE ALLEGED DATA THEFT FOR ULTERIOR MOTIVES, IS

STATES?
The counsel on behalf of the respondents humbly submits that the alleged data theft is an
offence.
OFFENCE:
Section 40 of the IPC defines Offence as an act punishable by the Code. An Offence takes
place in two ways, either by commission of an act or by omission of an act. When a Crime is
done, any member of the public can institute proceedings against the person accused of the
offence.
DATA THEFT:
Data theft is the act of stealing computer-based information from an unknowing victim with
the intent of compromising privacy or obtaining confidential information.
The meaning of this term Data theft can be inferred by importing definition of „data‟ from
the Information Technology Act and „theft‟ from the Indian Penal Code 1860. As per the
definition of „data‟ provided under the IT Act, data includes information, knowledge, facts,
concepts or instructions in any form (including computer printouts magnetic or optical
storage media, punched cards, punched tapes) or stored internally in the memory of the
computer. On the other hand, the term „theft‟ under Section 378 of IPC3 has been defined
as- “Whoever, intending to take dishonestly any movable property out of the possession of
any person without that person‟s consent, moves that property in order to such taking, is
said to commit theft.”
INDIAN PENAL CODE 1860:
In this regard, it is to be noted that the definition of “movable property” as prescribed under
Section 22 of I.P.C. only includes corporeal property. The provision pertaining to theft in
IPC does not cover „data‟, owing to its intangibility, However, if „data‟ is stored in a medium
(CD, Floppy etc.) and such medium is stolen, it would be covered under the definition of
3
K.N.Mehra V. State of Rajasthan 1957 AIR 369, 1957 SCR 623.2e

„theft‟, since the medium is a “movable property”. On the other hand, if the data is
transmitted electronically, i.e. in intangible form, it would not constitute „theft‟ under the
Indian Law. Therefore, „data‟, in its intangible form, cannot be stolen, under the Indian
Criminal Law. However, any person who indulges in such crime, also called a data criminal,
can be punished under section 405 of the Indian Penal Code, 1860 for „criminal breach of
trust‟. Section 4054 states that- “Whoever, being in any manner entrusted with property, or
with any dominion over property, dishonestly misappropriates or converts to his own use
that property, or dishonestly uses or disposes of that property in violation of any direction
of law prescribing the mode in which such trust is to be discharged, or of any legal
contract, express or implied, which he has made touching the discharge of such trust, or
willfully suffers any other person so to do, commits „criminal breach of trust‟.”
Similarly, section 405 of I.P.C. refers to “property” and not “movable property”, hence, the
word “property” is not restrictive. Therefore, ‘data‟ would be covered within the ambit of
“property” in Section 405 of I.P.C. and thus any such act would attract a penalty of
imprisonment up to 3 years, or fine, or both, under this section. This section penalizes Data
Criminals from amongst the independent contractors (Call Centers etc.) to whom Data may
be entrusted in the course of business for carrying out specific tasks /assignments.
INFORMATION TECHNOLOGY ACT 2000:
Section 43 (A) - Compensation for failure to protect data.
Section 66 (C) - Punishment for identity theft.
Section 72 - Penalty for breach of confidentiality and privacy.
In the case Radiological and Imaging Association Vs. Union of India and ors., it is
said that the breach of confidentiality and privacy and therefore, constitute an offence
punishable under section 72 of the Information Technology Act, 2000.
In K.R.Ravi Rathinam Vs. 1.The Director General of Police, If any person who, in
pursuance of any of the powers conferred under section 72 the Information technology Act
2000 Act, rules or regulations made thereunder, has secured access to any electronic record,
4
Om Prakash Gupta v. State of U.P 1957 AIR 458, 1957 SCR 423

book, register, correspondence, information, document or other material without the consent
of the person concerned discloses such electronic record, book, register, correspondence,
information, document or other material to any other person shall be punished with
imprisonment for a term which may extend to two years, or with fine which may extend to
one lakh rupees, or with both.
SADHAAR ACT:
In the case of Justice K.S. Putta Swamy V. Union if India, the important aspects pertaining
to „protection of information‟ are taken into consideration. Section 285 of the Sadhaar Act
puts an obligation on the Authority to ensure the security of identity information and
authentication records of individuals. Likewise, Section 296 imposes certain restrictions on
sharing information i.e. core biometric information collected or created under the Act or the
identity information.
Section 37 – the act of disclosing identity information is offence and is punishable with
imprisonment for a term which may extend to three years of with a fine which may extend to
ten thousand rupees.
Thus it is humbly submitted that:

The alleged data theft for ulterior motives is a cognizable offence.
Since, it constitutes a cognizable offence and the investigation of the police is in process and
the proof of commission of offence is to be processed then that the High court has no inherent
power under article 482 of Code of Criminal Procedure to interfere with the investigation by
the police and hence, the writ petition to quash the criminal proceedings is not maintainable 7.
5
Chapter VI of Aadhaar Act 2017
6
Chapter VI of Aadhaar Act 2017
7
A.S.Bindra V. Senior

3) WHETHER THE BHAGYANAGARA POLICE HAVE JURISDICTION TO

It is humbly submitted before the Hon‟ble High Court that the Bhagyanagara police have
the jurisdiction to register the criminal case and prosecute the softgrid management in
Bhagyanagara and the same shall be established by the following arguments.
1. Softgrid is located in the territorial limits of Bhagyanagara
Section 1 of the Bhagyanagara City Police Act 8 defines the scope and extent of Police of
Bhagyanagara. Since, Softgrid is a software company situated within the territorial limits of
Bhagyanagara, the Bhagyanagara City Police has jurisdiction to prosecute Softgrid.
2. The criminal complaint lodged by Vaghesh discloses commission of a cognizable

offence
However, Section 154 of Cr.p.c9 provides that any police officer cannot refuse to take the
complaint if it is about the commission of a cognizable offence. Nowhere is it said that the
offence should take place within the territorial jurisdiction of the concerned police station.
The Hon‟ble Supreme Court of Bharatistan in In Satvinder Kaur v. State (Govt, of NCT of
Delhi) 10 held that
“1. At the stage of investigation, there is no question of interference under Section 482,
Cr.P.C., on the ground that Investigating Officer has no territorial jurisdiction.
2. S.H.O., has statutory authority U/S. 156, Cr.P.C., to investigate any Cognizable offence
for which a FIR is lodged.
3. After investigation is over, if Investigating Officer arrives at the conclusion that cause
of action for lodging FIR has not arisen within his territorial jurisdiction, then he is required
to submit a report U/S. 170 Cr.P.C. and to forward the case to the Magistrate empowered to
take cognizance of offence.”
The Hon‟ble High Court in the case of Satish Dhammu Rathod v. State of Maharastra11
has upheld the Section 156(2)12 of Cr.p.c. which says that no proceeding of police officer in
8
Section 1 of Hyderabad City Police Act (act no. IX of 1348 F)
9
Section 154 of the Code of Criminal Procedure
10
1999 (4) RCR (Crl.) 503 (SC).
11
Satish Dhammu Rathod v. State of Maharastra crlp. No.477 of 2016
12
Section 156 clause 2 of the Code of Criminal Procedure

any stage shall, be called in question on the ground that the case was one which the officer
was not empowered to investigate.
Under section 177 of criminal procedure code, every offence shall ordinarily be
inquired into and tried by a court with whose local jurisdiction it was committed.
To make investigation on the part of a police station is directly interlinked

with the place where the trial for that offence can be held by the court. If the court has no
jurisdiction to try offence, the police Station falling within the local limits of that court
also has no jurisdiction to investigate the matter.
In the case of Naresh Kavarchand Khatri v/s State of Gujarat & Anr 13 , Hon'ble
Supreme Court has observed whether an officer in charge of a police station has the
requisite jurisdiction to make investigation or not will depend upon a large number of
factors including those contained in Sections 177, 178 and 181 of the Code of Criminal
Procedure. In a case where a trial can be held in any of the places falling within the
purview of the aforementioned provisions, investigation can be conducted by the officer in
charge of the police station concerned which has jurisdiction to investigate in relation
thereto. It is thus clear that according to Hon'ble Supreme Court jurisdiction to make
investigation on the part of a police station is directly interlinked with the place where the
trial for that offence can be held by the court.
Hence, the counsels on behalf of the respondents contend that the Bhagyanagara Police
have jurisdiction to register and prosecute Softgrid.
13
(2008) 8 SCC 300

4) WHO ELSE HAS THE JURISDICTION TO COMPLAIN ABOUT THE DATA

THEFT, IF IT IS AN ACTIONABLE WRONG?
It is humbly submitted before the Hon‟ble court that the following

authorities/individuals have the jurisdiction in regard to complaints about data theft:
I. CONTROLLER OF CERTIFYING AUTHORITY (C.C.A)
Under sec 17 of the information technology act, 2000 controller of certifying

authorities (C.C.A) is appointed by the central government. The main functional
departments under C.C.A are: a) Technology b) Finance and legal and c)
Investigation. Each of these departments has a deputy controller and assistant
controllers. Under section 27 of Information technology act, the controller can
delegate power to the deputy controller or any officer. Any such deputy controller or
officer authorized by the controller shall take up investigation of any contravention
related to data theft, privacy violations, defamation, spamming etc14 of the provisions
of information technology act, rules or regulations under section 28.
The controller‟s power to investigate contraventions is restricted to the licensed

certifying authorities, subscribers and electronic signature certificates. In Yahoo India
Pvt. Ltd. v. Union of India 15, the high court of Delhi examined the power of controller
of certifying authorities (C.C.A) under Section 28 of Information technology act. The
court made a clear distinction in regards to jurisdiction of adjudicating officer in
investigating contraventions under section 46 and jurisdiction of controller of
certifying authorities in investigating contraventions under section 28 of the
information technology act. Moreover, the right of CCA to investigate any
contravention under section 28 was not disturbed by the court.
II. ADJUDICATING OFFICER
If any person has committed a contravention of any of the provisions of this act or of
any rule, regulation, direction or order, there shall be an adjudicating officer for
holding an inquiry in the manner prescribed by the central government. The
adjudicating officer exercises jurisdiction in respect of the contraventions in relation
14
M/s. Mascon Global Ltd. v. CCA, [Appeal No. 7/2009]
15
Yahoo India Pvt. Ltd. v. Union of India WP(C) 6654/2011

to chapter IX of the act. The supreme court in the case of Indian National Congress
16
(I) v. Institute of Social Welfare , “where the law requires that an authority before
arriving at a decision must make an enquiry, such a requirement of law makes the
authority a quasi-judicial authority”. It is clear that the adjudicating officer under the
act is a quasi-judicial authority. The adjudicating officer is limited to the
determination of contraventions and imposition under section 43, 43A, 44, and 45 of
the act only.
Further, Under Rule 4 of the Information Technology [“Qualification and Experience

of Adjudicating Officer and Manner of Holding Enquiry] lists out few important
provisions which are as follows [Rule 4]:
a) To exercise jurisdiction in respect of the contraventions in relation to chapter IX

of the act
b) To receive complaint from the complainant
c) To issue notices together with all the documents to all the necessary parties to the
proceedings, fixing a date and time for further proceedings;
d) To hold an enquiry or dismiss the matter or may get the matter investigated
e) To enforce attendance of any person or persons
f) To fix a date and time for production of documents or evidence and
g) To hear and decide every application, as far as possible, in four months and the
whole matter in six months
If the adjudicating officer is convinced that scope of case (under adjudication) extends
to offences under chapter XI of the act, needing appropriate punishment instead of
penalties, then as per the aforesaid rules, he should transfer the case to the magistrate
having jurisdiction to try the case, through the presiding officer.
III. THE CYBER APPELLATE TRIBUNAL
The act has established the Cyber Appellate Tribunal under section 48 of the
Information Technology act, 2000 which reads as follows:
16
Indian National Congress (I) v. Institute of Social Welfare AIR 2002 SC 2158

Section 48. Establishment of Cyber Appellate Tribunal – (1) The central

government shall, by notification, establish one or more appellate tribunals to be
known as the Cyber Appellate Tribunal.
The Cyber Appellate Tribunal having appellate jurisdiction and being an appellate
authority is entitled to exercise its appellate jurisdiction both on fact as also in law
over a decision or order passed by the controller of certifying authorities or the
adjudicating officer. It was held by the Supreme Court in Union of India v. Paras
Laminates (P.) Ltd.17, “There is no doubt that the Tribunal functions as a court within
the limits of its jurisdiction. It has all the powers conferred expressly by the statute.
Furthermore, being a judicial body, it has all those incidental and ancillary powers
which are necessary to make fully effective the express grant of statutory powers”.
The Cyber Appellate Tribunal in view of exercising its incidental and ancillary
powers has directed the adjudicating officer of the state of Maharashtra to take
cognizance of the complaint filed by ICICI account holder. Hon‟ble Justice Rajesh
Tandon, the chairperson of the tribunal opined 18: “In view of the complaint, I direct
the secretary (IT) to look into the matter and pass appropriate orders after hearing
both the parties. However, liberty is given to approach this tribunal in case no action
is taken by any if the authorities by filing a proper appeal before this tribunal”.
The power of the cyber appellate tribunal to examine the correctness, legality or
propriety of the decision or order passed by the controller of certifying authorities or
the adjudicating officer is absolute.
IV. POLICE OFFICERS
The police has unfettered power to investigate all cases under the code of criminal
procedure, 1973 where they suspect that a cognizable offence has been committed.
Section 78 of the information technology act, 2000 deals with power to investigate
offences by police officer not below the rank of inspector as in charge of investigation
of any offence under the Information Technology act. It was held in State of Haryana
19
v. Ch. Bhajan Lal that the investigation proceeds on the first information. That is,
17
Union of India v. Paras Laminates (P.) Ltd., Order dated 17-7-2009
18
Order dated 17-7-2009 in a complaint against ICICI bank
19
State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604: 1992 AIR SCW 237: 1992 Cr LJ 527

when any information disclosing a cognizable offence is laid before the office-in-
charge of a police station, he has no option but to register the case on the basis
thereof. If a police station refuses to register the complaint, a representation may be
given to the commissioner of police/superintendent of police. If in spite of that action
is not taken, a private complaint can be filed before the concerned court or a writ
petition under Art. 226 can be filed before the high court.
5) WHETHER THE RESPONDENTS IN THE CASE ARE ENTITLED TO ANY

RELIEF?
It is humbly submitted before the Hon‟ble High Court of Trilinga that the respondents in the
instant case i.e., the State Police of Bhagyanagara are entitled to relief. These are as follows:
1. Both the Petitioners should be taken into Judicial Custody

The main relief for the respondents in the instant case would be a peaceful and
unhindered criminal investigation. Under section 167(1) of Cr.p.c,
“ Whenever any person is arrested and detained in custody and it appears that the
investigation cannot be completed within the period of twenty- four hours fixed by
section 57, and there are grounds for believing that the accusation or information is
well- founded, the officer in charge of the police station or the police officer making
the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit
to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter
prescribed relating to the case, and shall at the same time forward the accused to such
Magistrate.”20
Magistrate‟s power to give remand is not mechanical and adequate grounds must
subsist if Magistrate wants to exercise his power of remand. The same was held in Raj
Pal Singh v. State of U.P21. Here, the alleged data theft is a cognizable offence and
the investigation by the police should not be subjected to any hindrances.
20
Section 167 clause 1 of the Code of Criminal Procedure-Procedure when investigation cannot be completed in
twenty four hours.
21
1983 Crl.L.J. 109

2. President of Andhra Desam should be issued arrest warrant

“Whoever, being bound by law to render or furnish assistance to any public servant in
the execution of his public duty, intentionally omits to give such assistance, shall be
punished with simple imprisonment for a term which may extend to one month, or
with fine which may extend to two hundred rupees, or with both; and if such
assistance be demanded of him by a public servant legally competent to make such
demand for the purposes of executing any process lawfully issued by a Court of
Justice, or of preventing the commission of an offence, or of suppressing a riot, or
affray, or of apprehending a person charged with or guilty of an offence, or of having
escaped from lawful custody, shall be punished with simple imprisonment for a term
which may extend to six months, or with fine which may extend to five hundred
rupees, or with both.”22
Here, in the instant case, the Bhagyanagara police have issued notices to the President
of Andhra Desam to appear; which is binding and it is the responsibility of the
Petitioner to assist the Police (public servant). But the petitioner has not appeared in
front of the Police which is violation of law and therefore punishable under Section
187 of the Penal Code of Bharatistan23
3. Preventing the petitioners from absconding from the country
Section 10(3) of The Passport Act, 1967 mentions the conditions that may lead to
impounding of passports. Under section 10(3)e24,
“The passport authority may impound or cause to be impounded or revoke a passport or

travel document,- if proceedings in respect of an offence alleged to have been committed by
the holder of the passport or travel document are pending before a criminal court in India.”
The Hon‟ble Supreme Court in the matter titled Suresh Nanda v. Central Bureau of
Investigation25 has clarified that under the powers enumerated in the Code of Criminal
22
Section 187 in The Indian Penal Code- omission to assist public servant when bound by law to give assistance
23
Section 187 of the Indian Penal Code
24
Section 10(3)e of the Indian Passports Act 1967
25
(2008)3SCC674

Procedure, 1973, the Police Officials may have the power to seize a Passport; however, no
power to impound the Passport has been provided. It has also been categorically laid down
that the seizure of Passport is done at a particular moment of time.
Therefore, the respondents have approached this Court to pass an appropriate order to seize
or impound the passports of the petitioners until the completion of the investigation by the
Police to prevent them from absconding.

PRAYER
Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed before the Hon‟ble High Court of Trilinga to :
1) dismiss the writ petition filed by the petitioners and let the criminal proceedings continue
And/or
Pass any other order(s) that the Hon‟ble Court deems fit in the interest of Justice, Equity
and Good conscience.
For this act of kindness, the respondents as in duty bound, shall humbly pray.
COUNSELS FOR THE RESPONDENTS
Place:
Date:

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TEAM CODE: JM06

UNIVERSITY COLLEGE OF LAW, OSMANIA UNIVERSITY

2ND JUSTITIA MOOT COURT COMPETITION, 2019

IN THE HONOURABLE HIGH COURT OF TRILINGA

UNDER ARTICLE 226 OF THE CONSTITUTION OF BHARATISTAN

WRIT PETITION NO. --------- OF 2019

IN THE MATTER OF:

UPON SUBMISSION TO THE HON‟BLE CHIEF JUSTICE AND HIS COMPANION

~Memorial for the Respondents~

Memorandum for the Respondents 2

Petitioners Softgrid management and the President of

Memorandum for the Respondents 3

1. THE CONSTITUION OF INDIA, 1950.

1. CONSTITUTION OF INDIA, M.P. JAIN.

1. Manupatra Online Resources http://www.manupatra.com.

Memorandum for the Respondents 4

Memorandum for the Respondents 5

4. Mr. Vaghesh, an active supporter of the Andhra congress, working in a software

6. Vaghesh lodged a complaint with the police of Bhagyanagara against Softgrid

7. Simultaneously, he also lodged a complaint with the Election Comission of

Memorandum for the Respondents 7

WHETHER THE CITIZENS WHOSE DATA WAS ALLEGEDLY STOLEN,

WHETHER THE ALLEGED DATA THEFT FOR ULTERIOR MOTIVES, IS

ISSUE NO. III

WHETHER THE BHAGYANAGARA POLICE HAVE JURISDICTION TO

WHO ELSE HAS THE JURISDICTION TO COMPLAIN ABOUT THE

WHETHER THE RESPONDENTS IN THE CASE ARE ENTITLED TO ANY

Memorandum for the Respondents 8

1) WHETHER THE CITIZENS WHOSE DATA WAS ALLEGEDLY STOLEN,

2) WHETHER THE ALLEGED DATA THEFT FOR ULTERIOR MOTIVES, IS

Memorandum for the Respondents 9

C. The Cyber appellate tribunal established under section 48 of the Information

Memorandum for the Respondents 10

1) WHETHER THE CITIZENS WHOSE DATA WAS ALLEGEDLY STOLEN,

Memorandum for the Respondents 11

Memorandum for the Respondents 12

VIII. In recognizing privacy as fundamental constitutional value was a part of India‟s

Memorandum for the Respondents 13

2) WHETHER THE ALLEGED DATA THEFT FOR ULTERIOR MOTIVES, IS

INDIAN PENAL CODE 1860:

Memorandum for the Respondents 14

INFORMATION TECHNOLOGY ACT 2000:

Section 43 (A) - Compensation for failure to protect data.

Section 66 (C) - Punishment for identity theft.

Section 72 - Penalty for breach of confidentiality and privacy.

Memorandum for the Respondents 15

Thus it is humbly submitted that:

Memorandum for the Respondents 16

3) WHETHER THE BHAGYANAGARA POLICE HAVE JURISDICTION TO

1. Softgrid is located in the territorial limits of Bhagyanagara

2. The criminal complaint lodged by Vaghesh discloses commission of a cognizable

Memorandum for the Respondents 17

To make investigation on the part of a police station is directly interlinked

Memorandum for the Respondents 18

4) WHO ELSE HAS THE JURISDICTION TO COMPLAIN ABOUT THE DATA

It is humbly submitted before the Hon‟ble court that the following

I. CONTROLLER OF CERTIFYING AUTHORITY (C.C.A)

Under sec 17 of the information technology act, 2000 controller of certifying

The controller‟s power to investigate contraventions is restricted to the licensed

II. ADJUDICATING OFFICER

Memorandum for the Respondents 19

Further, Under Rule 4 of the Information Technology [“Qualification and Experience