1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

TEAM CODE: 343P

BEFORE THE HON’BLE SUPREME COURT OF INDIA

[APPELLATE JURISDICTION]

IN THE MATTER OF:-

THE CHAIRMAN RAILWAY BOARD & ORS.
(...Appellant)

vs.

MRS. ELA BOSE & ORS.

(...Respondent)

SLP No. _______ of 2017 (SLP).

(UNDER ART. 136 OF THE INDIAN CONSTITUTION, 1950)

MEMORIAL FOR THE APPELLANT

MEMORIAL ON BEHALF OF APPELLEANT

2
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

TABLE OF CONTENTS

TABLE OF CONTENTS...........................................................................................................2

INDEX OF AUTHORITIES

 BOOKS AND GUIDELINES REFERRED.................................................................3

 STATUTES INVOLVED..............................................................................................3
 LEGAL DATABASES..................................................................................................3
 TABLE OF CASES........................................................................................................4
 LIST OF ABBREVIATIONS…………………………………………………………5
 IMPORTANT DEFINITIONS………………………………………………………...5

STATEMENT OF JURISDICTION..........................................................................................6

SUMMARY OF FACTS............................................................................................................7

ISSUES RAISED………...........................................................................................................8

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

ARGUMENTS ADVANCED
I. WHETHER THE PRESENT APPEAL FILED BEFORE THE HON’BLE SUPREME
COURT IS MAINTAINABLE.........................................................................................11
II. WHETHER SOPHIA KHATOON WHO IS A FOREIGNER AND NOT AN INDIAN
CITIZEN IS ENTITLED TO RELIEF /COMPENSATION UNDER THE
CONSTITUTION OF INDIA ...……………………………………..................……….16
III. WHETHER THE COMMISSION OF AN OFFENCE LIKE RAPE BY THE PERSONS
CONCERNED WOULD MAKE THE RAILWAYS OR THE UNION OF INSSSSDIA
LIABLE TO PAY COMPENSATION TO THE VICTIM OF THE OFFENCE ON THE
GROUND OF VICARIOUS LIABILITY.........................................................................19

IV. WHETHER THE ACCUSED SUNIL SHARMA (AGED 15 YRS. 11 MONTHS 10

DAYS ) CAN BE TREATED AS AN ADULT FOR THE TRIAL OF THE OFFENCE
OF GANG RAPE ……………………………………………………………………….22

MEMORIAL ON BEHALF OF APPELLEANT

3
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

PRAYER..................................................................................................................................24

INDEX OF AUTHORITIES

 BOOKS AND GUIDELINES REFERRED

S. No. DESCRIPTION

1. KI Vibhute ,PSA PILlai’s Criminal Law (12th Edition 2014)

2. Mahendra Pal Singh ,VN Shukla’s Constitution Of India (12 th Edition 2013)

3. Dr. R.K . Bangia, Law Of Torts (23rd Edition 2010)

4. Dr. Ashok K. Jain, Law Of Torts (6th Edition)

 STATUTE INVOLVED

S. No. STATUTE/LEGISLATION

1. The Constitution of India, 1950

2. Indian Penal code, 1860

3. Code of Criminal Procedure, 1973

4. Juvenile Justice ( Care and Protection of children) Act 2015

 LEGAL DATABASES

S. No. LEGAL DATABASES

1. Westlaw

MEMORIAL ON BEHALF OF APPELLEANT

4
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

2. Manupatra

3. SCC Online

 TABLE OF CASES

S. No. NAME OF THE CASE CITIED PAGE No.

1. S.P. Gupta vs Union of India 12

2. Dattaraj Nathuji Thaware vs State of Maharashtra 12

3. Janta Dal vs H.S. Chowdhary 12

4. Kazi Lhendup Doiji vs C.B.I. 12

5. T.N. Godaverman Thirumulpad 13

6. Ghulam Qadir v Special Tribunal & Ors. 14

7. Vinoy Kumar vs State of U.P. & Ors. 15

8. Rashid Ahmed khan vs Municipal Board Kairana 16

9. Raghunandan Prasad vs CIT 17

10. Gordhan singh v 17

11. Union of India vs T.R. Verma 17

12. Hari Krishna v State 17

13. State of Haryana v Sukhbir Singh 18

14. Ankush Shivaji Rao Gayakward vs State of Maharashtra 18

15. Storey vs Ashton 20

16. Rajinder Chandra vs State of Chhattishgarh and Ors. 22

17. Dr. Subramaniam Swamy & ors. Vs Raju THR 22

18. Pratap Singh v State of Jharkhand 23

MEMORIAL ON BEHALF OF APPELLEANT

5
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

19. Mukesh & Ors. Vs State for NCT of Delhi 23

 LIST OF ABBREVIATION

ABBREVIATION DEFINITION

& And

AIR All India Reporter

Anr. Another

Art. Article
Crim. Criminal

HC High Court

Hon’ble Honourable

IPC Indiana Penal Code, 1860

Ors. Others

PIL Public Interest Litigation

S. Section

SC Supreme Court

SCC Supreme Court Cases

UOI Union Of India

v. Versus

 IMPORTANT DEFINITIONS

(1) ‘Appellant(s)’ for the purposes of this memorandum stands for ‘Environmental Protection

Forum’.
(2) ‘Respondent(s)’ for the purposes of this memorandum stands for ‘Union of Hind’.

MEMORIAL ON BEHALF OF APPELLEANT

6
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

STATEMENT OF JURISDICTION

THE HON’BLE SUPREME COURT OF INDIA HAS JURISDICTION TO TRY,

ENTERTAIN AND DISPOSE THE PRESENT CASE BY VIRTUE OF ARTICLE 136 OF
THE CONSTITUTION OF INDIA, WHICH READS AS,

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

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed
or made by any court or tribunal constituted by or under any law relating to the Armed
Forces. “

MEMORIAL ON BEHALF OF APPELLEANT

7
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

STATEMENT OF FACTS
 Sophia khatoon, a Bangladeshi citizen came to India on official duty and to vist
Ajmer Sharif.
 Her ticket for Ajmer Sharif was waitlisted and she contacted the T.T.E. for confirming
it and was instructed by the T.T.E. to wait in the ladies waiting room.
 She was approached by a broker Siya Ram Singh who was accompanied by Ashok
Singh, a tout, posing himself as very influential person in railways and her ticket was
confirmed by them.
 At about 20:00 hours Siyaram Singh along with a boy named Kashi came and advised
her to accompany the boy to a restaurant if she wanted to have food online.
Accordingly, she went to a nearby eating house with the boy. She vomited after
having the meal and returned back to waiting room.
 Before boarding train Ashok Singh along with Rafi Ahmed, a parcel supervisor at
Howrah station came to her and she accompanied them to Yatri Niwas. On the way
Sitaram singh, a khalasi of Electric department joined them.
 She was taken to room no. 102 booked in the name of clerk of Howrah railway station
and Awdesh singh, parcel clearing agent were waiting inside the room.
 Sunil Sharma aged 15 yrs who was a helper engaged by railway on contracted basis
took liquor inside room and forced her to consume liquor. All the five person gand
raped her.
 When she got her senses back and escaped from the room, again, she was cheated by
a person named Siya Ram Singh who took her to a rented flat of Ram Samiran
Sharma and was again raped. Hearing her cry, landlord informed police and was
rescued by Jorabagan police.
 A PIL was filed by an advocate Mrs. Ela Bose and a few NGO members under Art.
226 of Indian constitution based on above mentioned facts. The High Court directed
Railways to pay a sum of Rs. 10 lacs as compensation to Sophia Khatoon holding
Railways vicariously liable.

MEMORIAL ON BEHALF OF APPELLEANT

8
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

ISSUES RAISED

ISSUE 1

WHETHER THE PRESENT APPEAL FILED BEFORE THE HON’BLE SUPREME

COURT IS MAINTAINABLE?

ISSUE 2

WHETHER SOPHIA KHATOON WHO IS A FOREIGNER AND NOT A INDIAN

CITIZEN IS ENTITLED TO ANY RELIEF/COMPENSATION UNDER
CONSTITUTION OF INDIA?

ISSUE 3

WHETHER THE COMMISSION OF AN OFFENCE LIKE RAPE BY THE PERSON

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

ISSUE 4

WHETHER THE ACCUSED SUNIL SHARMA (AGE 15YRS 11MONTHS AND

10DAYS) CAN BE TREATED AS AN ADULT FOR THE TRIAL OF THE OFFENCE
GANG RAPE?

MEMORIAL ON BEHALF OF APPELLEANT

9
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

SUMMARY OF ARGUMENTS

1. WHETHER THE PRESENT APPEAL FILED BEFORE THE HON’BLE

SUPREME COURT IS MAINTAINABLE?
It is humbly submitted before this Hon’ble Court that the present appeal filed before the
Hon’ble Supreme Court by special leave is maintainable for the following reasons

 The hon’ble high court was erroneous in entertaining the suit in the form of a
PIL.
 There was no Locus Standi of the petitioner to file the Suit.

2. WHETHER SOPHIA KHATOON WHO IS A FOREIGNER AND NOT A INDIAN

CITIZEN IS ENTITLED TO ANY RELIEF/COMPENSATION UNDER
CONSTITUTION OF INDIA ?
It is humbly submitted before the Hon’ble court that Smt. Sophia Khatoon , in aforesaid case,
is not entitled to any relief /compensation under the constitution of India for following
reasons
 If sufficient alternative remedy is available, the remedy under the constitution
should not be used as substitute.
 The remedy lies in the Private law and not in the Public law.

3. WHETHER THE COMMISSION OF AN OFFENCE LIKE RAPE BY THE

PERSON CONCERNED WOULD MAKE THE RAILWAY OR THE UNION OF
INDIA LIABLE TO PAY COMPENSATION TO THE VICTIM OF THE
OFFENCE ON THE GROUND OF VICARIOUS LIABILITY?
It is humbly submitted before this Hon’ble Court that the Railway would not be vicariously
liable to pay compensation to the victim of the offence on the offence of rape for the
following reasons
.

MEMORIAL ON BEHALF OF APPELLEANT

10
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

 The offence of rape committed by the person concerned was not committed in
the course of employment rather it was committed in personal capacity.
 There was a contributory negligence on the part of the victim.
 Mere commission of offence in the railway premise is not a sufficient ground
to hold railway liable to pay compensation.

4. WHETHER THE ACCUSED SUNIL SHARMA (AGE 15YRS 11MONTHS AND

10DAYS) CAN BE TREATED AS AN ADULT FOR THE TRIAL OF THE
OFFENCE GANG RAPE.

The council humbly submits before the hon. court that the accused that the accused sunil
Sharma cannot be treated as an adult for the crime of the gang rape for the following
reasons.
 As per the mandate of Juvenile Justice ( Care and Protection of Children )Act
2015 Sunil Sharma is a child and therefore cannot be treated as an adult.

MEMORIAL ON BEHALF OF APPELLEANT

11
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

ARGUMENTS ADVANCED

1. THAT THE APPEAL FILED BEFORE THE HON’BLE SUPREME

COURT IS MAINTAINABLE

The counsel humbly submits before this Hon’ble court that the present appeal filed before
this court by special leave by virtue of Art. 136 of Indian constitution is maintainable. Art.
136 reads as;

“Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India

(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces”

special leave petition or SLP can be presented under following circumstances:

 SLP can be filed against any judgment or decree or order of any High court/tribunal in
the territory of India.
 Or, SLP can be filed in case the high court refused to grant the certificate of fitness for
appeal to Supreme court of India

This appeal by virtue of Art. 136 has been filed against the order of the Hon’ ble High court
which was erroneous in entertaining the original petition as a PIL and holding the Railway
and Union of India vicariously liable and awarding exemplary damages to the victim

[1.1] The Hon’ble High Court was erroneous in entertaining the petition as PIL
The council humbly submits that the Hon’ ble High court was erronepus in entertaining
the petition filed originally under Art. 226 of the Indian Constitution in the form of PIL
as a public interest litigation is a pro bono publico litigation. through which, the legally
spirited citizens can focus attention on and achieve results pertaining to larger public
issues, especially in the fields of human rights, consumer welfare and environment.

MEMORIAL ON BEHALF OF APPELLEANT

12
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

This device was developed by the apex court in the case of S.P. GUPTA V. UOI.1 As
recorded by justice BHAGAWATI while introducing the concept “public interest
litigation -- litigation undertaken for the purpose of redressing public injury, enforcing
public duty, protecting social, collective, 'diffused' rights and interests or vindicating
public interest, any citizen who is acting bona fide and who has sufficient interest has to
be accorded standing”
It was intended to vindicate public interest where fundamental and other rights of the
people who were poor, ignorant or in socially or economically disadvantageous position
and were unable to seek legal redress were required to be espoused.
In this connection reference may be made to a decision given by this Court in the case of
Dattaraj Nathuji Thaware Vs. State of Maharashtra & Ors.2 in which Hon'ble
Pasayat J. has also observed as follows:" Public Interest Litigation is a weapon which
has to be used with great care and circumspection and the judiciary has to be extremely
careful to see that behind the beautiful veil of public interest an ugly private malice,
vested interest and/or publicity seeking is not lurking. It is to be used as an effective
weapon in the armory of law for delivering social justice to the citizens. The attractive
brand name of public interest litigation should not be used for suspicious products of
mischief. It should be aimed at redressal of genuine public wrong or public injury and
not publicity oriented or founded on personal vendetta."
A person acting bona fide and having sufficient interest in the proceeding of public
interest litigation will alone have a locus standi and can approach the court to wipe out
violation of fundamental rights and genuine infraction of statutory provisions, but not for
personal gain or private profit or political motive or any oblique consideration Similarly,
a vexatious petition under the colour of public interest litigation brought before the court
for vindicating any personal grievance, deserves rejection at the threshold.". These
aspects were highlighted by this court in Janata Dal v. H.S. Chowdhary3 and Kazi
Lhendup Doiji v. CBI 4.

1
AIR, 1982 SC 149
2
AIR 1993 SC 852
3
(1992) 4 SCC 305
4
(1994) 2 SCC 116

MEMORIAL ON BEHALF OF APPELLEANT

13
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

The clear mandate of the judiciary in this regard is that a PIL cannot be used to serve
personal or individual interest in the present case the suit was filed for publicity and
nothing else, because litigation for compensating an individual who was not a socially
economically educationally disable cannot be said to be for larger public interest. Miss
Sophia khatoon was financially and educationally competent and able to file a petition on
her own behalf to protect her rights.
Furthermore the remedies sought in the PIL were vague and only specifically clear about
compensation for miss Sophia khatoon. Other victims to be the beneficiaries of the
compensation from the impugned order are unidentified. Thus it is a petition to serve the
indivisual interest.
In S. P. Gupta's case (supra), this Court has found that this liberal standard makes it
critical to limit standing to individuals "acting bona fide. To avoid entertaining frivolous
and vexatious petitions under the guise of PIL, the Court has excluded two groups of
persons from obtaining standing in PIL petitions. First, the Supreme Court has rejected
awarding standing to "meddlesome interlopers". Second, the Court has denied standing
to interveners bringing public interest litigation for personal gain.

TN. Godavarman Thirumulpad (98) v. Union of India & Ors. 5 submitted that
howsoever genuine a case brought before the court by a public interest litigant may be,
the court has to decline its examination at the behest of a person who, in fact, is not a
public interest litigant and whose bona fides and credentials are in doubt and that no trust
can be placed by the court on a mala fide applicant in public interest litigation.
In the instant case the credentials or field of work of the NGO members is vague and not
stated clearly so they can not be treated as public interest litigants Thus, the Hon’ble
High Court should have considered this aspect of judicial pronouncement and rejected
the petition filed for cheap publicity and serving the individual interest, camouflaged in
the form of PIL and should have rejected at the threshold

5
(2006) 5 SCC 28

MEMORIAL ON BEHALF OF APPELLEANT

14
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

[1.2] There was no Locus Standi of the petitioner to file the Suit

Mrs. Ela Bose or for that matter NGO members had no locus standi to file the petition in
the Hon’ble High Court under Art. 226 of the Indian Constitution because the petitioners
were not the aggrieved party or the victim of the incident neither they were directly or
indirectly related with the victim. The credentials or field of work of the NGO members
is vague and not stated clearly so they can not be treated as public interest litigants No
legal or constitutional right of the petitioners were violated or encroached upon and there
was no threat or apprehension of its violation or suppression and the existence of the
legal right of the petitioner which is alleged to have been violated is the foundation
for invoking the jurisdiction of the High Court under Art. 226

This contention was upheld by the apex court in Ghulam Qadir v. Special Tribunal
and Ors. 6 The court through Justice Sethi held that

“There is no dispute regarding the legal proposition that the rights under Article
226 of the Constitution of India can be enforced only by an aggrieved person except
in the case where the writ prayed is for habeas corpus or quo warranto. Another
exception in the general rule is the filing of a writ petition in public interest. The
existence of the legal right of the petitioner which is alleged to have been violated is
the foundation for invoking the jurisdiction of the High Court under the aforesaid
Article “

In the present case all the exceptions forming the locus standi of a stranger or
unaggrieved party are absent as

 The writ prayed is not for habeas corpus or quo warranto.

 The writ petition is not filed in public interest rather filed for publicity and
indivisual interest and thus the petition can not be treated as a PIL

In the instant case the petitioner had not filed the petition in public interest and did not
disclose the circumstances which prevented the affected persons from approaching the

6
Appeal (civil) 6963-64 of 2001

MEMORIAL ON BEHALF OF APPELLEANT

15
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

court. No circumstance was mentioned in the petition which allegedly incapacitated the
affected persons from filing the writ petition.

In the discharge of her professional obligations, the petitioner-advocate is not obliged to

file the writ petition on behalf of her client Section 30 of the Advocates Act, only entitles
an advocate to practise the profession of law and not to substitute himself for his client.
The filing of the writ petition in his own name, being not a part of the professional
obligation of the advocate, the High Court should have dismissed the writ petition
holding that the petitioner had no locus standi. This contention was upheld by this court
in Vinoy Kumar vs State Of U.P. & Ors. 7

Hence in the light of aforementioned arguments and judicial pronouncements, the present
appeal filed before the Hon’ble supreme court is maintainable.

7
2001 AIR SC 1739

MEMORIAL ON BEHALF OF APPELLEANT

16
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

2. THAT SOPHIA KHATOON WHO IS A FOREGNER AND NOT A INDIAN

CITIZEN IS NOT ENTITLED TO ANY RELIEF/COMPENSATION UNDER
CONSTITUTION OF INDIA.

The counsel humbly submits before this Hon’ble court that Smt. Sophia Khatoon in aforesaid
case is not entitled to any relief/compensation under the constitution of India. The
constitution of India for following reasons.

[2.1] If sufficient alternative remedies is available the remedy under the constitution
should not be used as substitute

What kind of remedy is available to a victim depends on the nature and peculiarity of cases.
Out of these remedies the remedy under the constitution is considered to be an extra ordinary
remedy. Such a remedy is given when ordinary or alternative remedies are not sufficient to
redress or rehabilitate the victim. However, if sufficient alternative remedies are available
then a remedy under the constitution can’t be used as a substitute.

This proposition was also observed by this court in Rashid Ahmed v. Municipal Board,
Kairana.8 The court laid down that existence of an adequate legal remedy was a factor to be
taken into consideration in the matter of granting writs.

This was followed by the apex court in case Rashid and sons v. income tax investigation
commission. The court reiterated the above proposition and held that where alternative
remedies existed, it would be a sound exercise of discretion to refuse to interfere in a petition
under art. 226.
The remedies under art, 226 should not be permitted to be utilized as substitute for ordinary
remedies all the high courts accordingly agree that writs or direction under art. 226 should
ordinarily be not issued where an equally efficient and adequate alternative remedy exist
unless there is an exception reason for dealing with the matter under the writ jurisdiction. The
8
AIR 1965 SC 923

MEMORIAL ON BEHALF OF APPELLEANT

17
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

reference may be taken from Raghunandan Prasad v. Cit, Walchand Nagar Industries
Ltd v. State,9 Gordhan Singh v. Custodian Evacuee Property. 10

This view has also been endorsed in UOI v. TR VERMA11 where the supreme court lend
some credence to the doctrine stating “it is well settled that when an alternative and equally
efficacious remedy is open to a litigant, he should be require to pursue that remedy and not to
invoke the special jurisdiction of the high court to issue a prerogative writ”.

In the present case the high court was exemplary in awarding compensation which again can
be granted in extraordinary cases. The amount of compensation was much higher.

[2.2] The remedies lie in private law and not in the public law

In the present case the remedy primarily lies in the private law and not in the public law.
The victim should have approached the court under section 357 and 357a of CRPC read with
376d of IPC. “
To fulfill this mandate of section 357a all the state have devised a mechanism to compensate
the victim of crime in the form of victim compensation scheme which is aided by central
govt. through Nirbhaya fund for rape victims. The judicial response has always been positive
in dealing with the benevolent provision of compensation. in Harikrishna and State of
Haryana v/. Sukhbir Singh12 supreme court judgment mandated courts to exercise section
357 liberally and award adequate compensation particularly in cases where the accused is
released on admonition probation or when the parties into a compromise. At the same time
the court caution that the compensation must be reasonable dar and just taking into account
the facts and substances of each case nature of the crime veracity of the ckane and ability of
the accused to pay . the court further observe that the payment by way of compensation must
however be reasonable.

9
AIR 1953 ALL 399
10
AIR 1954 Raj.77
11
1958 SCR 499
12
1988 AIR 2127

MEMORIAL ON BEHALF OF APPELLEANT

18
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

13
Ankush Shivaji Gaykewad v. State of Maharashtra The amendments to the Cr.P.C.
Brought about in 2008 focused heavily on the rights of victims in a criminal trial,
particularly in trials relating to sexual offences. Though the 2008 amendments left
Section 357 unchanged, they introduced Section 357A under which the Court is
empowered to direct the State to pay compensation to the victim in such cases where “the
compensation awarded under Section 357 is not adequate for such rehabilitation, or where
the case ends in acquittal or discharge and the victim has to be rehabilitated.” Under this
provision, even if the accused is not tried but the victim needs to be rehabilitated, the
victim may request the State or District Legal Services Authority to award him/her
compensation. This provision was introduced due to the recommendations made by the
Law Commission of India in its 152nd and 154th Reports in 1994 and 1996 respectively.
Furthermore, in this case the high court was exemplary in awarding compensation which
again can be granted in extra-ordinary cases. Therefore, the court should have provided
alternative remedies to the victim under sections sec. 357 of Cr.P.C. and section 376d of IPC
which was sufficient.

Hence in the light of aforementioned arguments and judicial pronouncements, it is humbly

submitted that smt. Sophia khatoon in aforesaid case is not entitle to any relief/compensation
under the constitution of India.

13
(2013) 6 SCC 770

MEMORIAL ON BEHALF OF APPELLEANT

19
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

3. THAT THE COMMISSION OF AN OFFENCE LIKE RAPE BY THE

PERSON CONCERN WOULD NOT MAKE THE RAILWAY OR THE UOI
LIABLE TO PAY COMPENSATION TO THE VICTIM FO THE OFFENCE
ON THE GROUND OF VICARIOUS LIABILITY.

[3.1] The offence of rape committed by the person concerned was not committed in the
course of employment rather it was committed in the personal capacity

The counsel humbly submits before this Hon’ble court that for the liability of master to arise
for the tortuous act of his employee to arise the following two essentials are to be present.
The tort was committed was the employee. Secondly, the servant committed tort in the course
of employment.

Absence of any of the two elements will exempt master from vicarious liability, consequently
a master would not be liable for the tort committed by his servant which is out of course of
employment. Further an act is deemed to be done in course of employment if it is either (i) a
wrongful act authorized by the master or a wrongful or unauthorized mode of doing some act
authorized by the master. In the present case the honorable court can see in the facts that
Ruffi Ahmed, Lalan Singh and Awadesh Singh were employed as parcel supervisor, parcel
clerk and parcel clearing agent respectively and one Sitaram Singh who was Khalasi in the
electrical department were the four employees of railway who committed the offence of gang
rape on Sophia Khatoon. At this juncture, the fundamental question that will decide the
liabilities of the railway or the UOI is that whether the rape was committed in the course of
employment. For this the point which can be taken into account is that none of them were
officially assigned at duties at the railway Yatri Niwas. As soon as they left their respective
department when they were authorized to work they came out of their authorized limit.
Consequently they were out of the course of employment. They went to the railway Yatri
Niwas where the rape was committed on the account of co-accused Ashok Singh who was
not a railway employee but was only having some contact in the railway department. further
the council would like to draw you attention towards the point that it was Ashok Singh
against whose railway card pass no 3638 the room no 102 on the first floor of the railway

MEMORIAL ON BEHALF OF APPELLEANT

20
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

Yatri Niwas was booked. Therefore, when other co-employees accompanied him to the
railway yatri niwas they were working in their personal capacities. A similar proposition was
held by the English court Storey v. Ashton14 in which just lush observed that if a workman
goes on frolic of his own rather than doing something which is connected with the
performance of his duties the master cannot be held liable. In the same case it was further
observed that if the employee was on his way back to employer started his new journey on
his own account or by the direction of the fellow servant then the master cannot be held
liable.

The same analogy can be applied in the present case. As the employee went to the railway
Yatri Niwas on the account of Ashok Singh and not on the account of any authorized work
therefore they cannot be said to be in the course of employment, consequently the railway
cannot be held vicariously liable merely on the ground that an offence was committed in its
premises because an offence can be committed by anyone in the railway premise. Further the
railway authorities cannot peep into every room of railway Yatri Niwas to check as it would
be violative of privacy of the inmates. The liability of railway would have arisen only when
the act had been done in the course of employment. The council would like to draw the
attention of honorable court towards the American doctrines regarding vicarious liability.
There are two tests to establish the vicarious liability of the employee (i) Motive to serve test
which states that the employees action be actuated at least in part by a purpose to serve the
master. In present case the act committed by the railway employees cannot be held to serve
the purpose of the master, that is, railways. (ii) Foresee ability and “enterprise risk” tests
which states that an employee would be liable if there is foreseeable risk of wrongful act
associated with the enterprise. If the commission of tortuous act which was reasonably
foreseeable with respect to the enterprises field of work then the enterprise can be held liable
for the tort committed by its employee, in the present case the rape was not foreseeable risk in
the employment of the accused employee.

14
[1869] LR4 QB 476

MEMORIAL ON BEHALF OF APPELLEANT

21
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

[3.2]There was a contributory negligence on the part of the victim

When the plaintiff by his own want of care contribute to the damage caused by negligence or
wrongful conduct of the defendant he is considered to be guilty of contributory negligence. In
present case also Smt. Sophia Khatoon had a wait-listed ticket and upon asking or enquiring
about the same with the T.T.E. she was told to wait in the ladies waiting room but instead of
following instruction she followed an illegal means of procuring a ticket through a broker
which is prohibited by the railway. Further at every station the railway have a computer
automated voice note which directs and warn the passengers not to contact with any unknown
person as the same may result into some unfavorable chain of events. And in instant case she
instead of following these instructions she accompanied Ashok Singh to the railway Yatri
Niwas even though she had some doubts in her mind. Consequently, it can be said that she
was guilty of contributory negligence and thus the railway cannot held vicariously liable.

Hence in the light of aforementioned arguments and judicial pronouncements, it is humbly

submitted that the railways or UOI would not be liable to pay compensation to the victim of
the offence on the ground of vicarious liability.

MEMORIAL ON BEHALF OF APPELLEANT

22
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

4. THAT THE ACCUSED SUNIL SHARMA AGE 15 YR 11 MONTHS AND

10DAYS CANNOT BE TREATED AS AN ADULT FOR THE TRAIL OF THE
OFENCE OF GANGRAPE.

The council humbly submit before the honorable court that the co-accused Sunil Sharma is 15
yrs 11 months 10days and cannot be treated as an adult because as per the mandate of
juvenile justice ( care and protection of children 2015), he is a child. As per section 1(12)
which reads as follows –

“child means a person who has not completed the age of 18 yrs. Also in section 1(35)
juvenile means a child below the age of 18yrs.”

In the present case as we find in the fact sunil Sharma who is of age 15yrs 11months 10days
therefore, he cannot be treated as an adult. Further, even if the question of a child in conflict
with the law involved in a heinous crime is raised, the child cannot be treated as an adult in
this present case because as per the mandate of Section 15 of juvenile justice (care and
protection of children 2015). The age required for child to be treated as an adult is 16yr or
more than 16yrs. Therefore, he cannot be treated as an adult. Further, reliance can be placed
on the decided cases. In the case of Rajindra Chandra v. State of Chattisgarh and Ors.15
The court held that while dealing with the question of determination of age of the accused for
the purpose of finding out whether he is juvenile or not, hypothetical approach should not be
adopted if two views are possible regarding the age of the accused. The court should lean in
the favor of holding the accused to be a juvenile.

In another case Dr. Subramanian Swamy and Ors. V. Raju THR, The Member of
Juvenile Justsice Board and Ors.16 this view was taken. The act must be interpreted and
understood to advance the cause of legislation and to confer the benefit of the provision
thereof, to the category of person for whom the legislation has been made.

15
(2002 2 SCC 287
16
(2014) 8 SCC 390

MEMORIAL ON BEHALF OF APPELLEANT

23
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

and in Pratap Singh v. State of Jharkhand,17 it was laid down by the apex court that the
act is beneficial piece of legislation and must there receive its due interpretation as a
legislation belonging to the said category. Similarly, in Nirbhaya Gangrape18 case the
juveniles were not treated as an adult as per the pre-existing juvenile justice ( care and
protection of children 2000 ).

17
(2005) 3 SCC 551
18
Mukesh & Ors. Vs State for NCT of Delhi

MEMORIAL ON BEHALF OF APPELLEANT

24
1ST NATIONAL MOOT COURT COMPETITION, HALDIA LAW COLLEGE

PRAYER

In light of the issues raised, arguments advanced, reasons given and authorities cited it is
most humbly and respectfully requested that this Hon'ble Supreme Court may be pleased to
adjudge and declare on behalf of the appellant that:

1. The Present Appeal Filed Before The Hon’ble Supreme Court Is Maintainable

2. That Sophia Khatoon Who is a foreigner And Not an Indian Citizen is not entitled to any
relief/compensation under Constitution of India.

3. That the commission of an offence like rape by the persons concerned would not make
the railways or the UOI liable to pay compensation to the victim for the offence on the
ground of vicarious liability.

4. That the accused Sunil Sharma [aged 15 Yr 11 months and 10days] cannot be treated as
an adult for the trail of the offence of Gang Rape.

AND/OR
Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of Justice,
Fairness, Equity and Good Conscience.
For this Act of Kindness, the Appellant as in duty bound, shall forever pray.

The Appellant

Sd/-

...................................

(COUNSELS FOR THE APPELLANT)

MEMORIAL ON BEHALF OF APPELLEANT

25