Best Memorial APPELLANT 2nd RGNUL National Moot Court 2013

TEAM CODE
10
___________________________________________________________________________
IN THE HONORABLE
HIGH COURT OF SATYA PRADESH
APPEAL NO. .OF 2013
IN THE MATTER OF:
CENTRAL BUREAU OF INVESTIGATION.......................................................APPELLANT
VERSUS
HOSHIARRAI AND OTHERS...................................................................................RESPONDENT
ON SUBMISSION TO THE HIGH COURT OF SATYA PRADESH
WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT
MOST RESPECTFULLY SUBMITTED
COUNSEL FOR APPELLANT
2nd RGNUL MOOT COURT COMPETITION, 2013

TABLE OF CONTENTS
LIST OF ABBREVIATIONS .............................................................................................. IV

INDEX OF AUTHORITIES .................................................................................................. V
TABLE OF STATUTES/CONVENTIONS .......................................................................... V
LIST OF BOOKS .................................................................................................................. V
TABLE OF CASES ..............................................................................................................VI
STATEMENT OF JURISDICTION ................................................................................... IX
STATEMENT OF FACTS ................................................................................................... IX
ISSUES RAISED.................................................................................................................. XII
SUMMARY OF ARGUMENTS ....................................................................................... XIII
THAT THE SANCTION FOR PROSECUTION IS NOT REQUIRED ........................... XIII
THAT THE ACCUSED ARE GUILTY OF CRIMINAL MISCONDUCT UNDER THE PC
ACT ................................................................................................................................... XIII
THAT THE ACCUSED ARE GUILTY UNDER SECTION 169 OF INDIAN PENAL
CODE ................................................................................................................................ XIII
THAT THE ACCUSED ARE GUILTY UNDER SECTION 120B OF INDIAN PENAL
CODE ................................................................................................................................ XIV
ARGUMENTS ADVANCED .................................................................................................. 1
I.
THAT THE SANCTION FOR PROSECUTION IS NOT REQUIRED . ....................... 1

a.
That section 19 of PC Act and section 197 of the Code act in different spheres ........ 4
II. THAT THE ACCUSED ARE GUILTY ON ACCOUNT OF CRIMINAL

MISCONDUCT UNDER PREVENTION OF CORRUPTION ACT .................................... 6
MEMORIAL FOR APPELLANT
Page II

a.
That the ingredients under Section 13(1)(d)(i) are being fulfilled .............................. 7
b.
That the ingredients under Section 13(1)(d)(ii) are being fulfilled ........................... 10
III. THAT THE ACCUSED ARE GUILTY UNDER SECTION 169 OF INDIAN PENAL
CODE. .................................................................................................................................. 12
IV. THAT THE ACCUSED ARE GUILTY OF OFFENCE OF CRIMINAL
CONSPIRACY PUNISHABLE U/S 120B OF INDIAN PENAL CODE. ............................ 17
a.
That the Ingredients of criminal conspiracy are being fulfilled................................ 17
b.
There is sufficient circumstantial evidence to prove guilt of the accused ................. 20
c.
That the offence is proved beyond reasonable doubt ................................................ 24
PRAYER ............................................................................................................................... XV
Page III

LIST OF ABBREVIATIONS
A.P. Andhra Pradesh
p. Page
AIR All India Reporter
Para Paragraph
Anr. Another
PC Act Prevention of Corruption Act
Cal. Calcutta
RCR Recent Criminal Reporter
CBI Central Bureau of Investigation
S. Section
Code Code of Criminal Procedure
SC Supreme Court
Cri. Criminal
SCC Supreme Court Cases
CriLJ Criminal Law Journal
SCR Supreme Court Reporter
DB Double Bench
Supp Supplement
FB Full Bench(3 Judges)
SP-IMAP Satya Pradesh International
Gau Gauhati
Market for Agricultural Food Products
IFM International Food Market
V - Versus
M.P.L.J. Madhya Pradesh Law Journal
WWW World Wide Web
Manu Manupatra
ND-IMMP -Nirmala Devi International Market for Milk Products Pvt. Ltd.
Ors. Others
P&H Punjab and Haryana
Page IV

INDEX OF AUTHORITIES
TABLE OF STATUTES/CONVENTIONS
Code of Criminal Procedure, 1973
Indian Evidence Act, 1872
Indian Penal Code, 1860
Prevention of Corruption Act, 1988
LIST OF BOOKS
BASU, DURGA DAS, CRIMINAL PROCEDURE CODE, 1973 (LexisNexis

ButterworthsWadhwa, Nagpur, 4th Edition, 2010)
CHAKRABORTY,R., LAW OF LAND ACQUISITION AND COMPENSATION

(Orient Publishing Company, New Delhi, 1st Edition, 2007)
DHAMIJA, DR.ASHOK, PREVENTION OF CORRUPTION ACT (Wadhwa and

Company, Nagpur, 1st Edition, 2007)
GOUR, DR.HARI SINGH, PENAL LAW OF INDIA (Law Publishers (India) Pvt.
Ltd, Allahabad, 11th Edition, 2011)
GAUR,K.D., THE INDIAN PENAL CODE (Universal Law Publications,New Delhi,

2009)
RANCHODDAS,RATANLAL, THAKORE, KESHAVLAL,DHIRAJLAL, THE

INDIAN PENAL CODE (Wadhwa and Company, Nagpur, 36th Edition, 2006)
Page V
RAO, A S RAMACHANDRA, COMMENTARY ON PREVENTION OF

CORRUPTION ACT A TREATISE ON ANTI CORRUPTION ACT (Universal
Law Publishing Ltd, New Delhi, 2nd Edition, 2011)
REDDI, M.R., ANTI-CORRUPTION LAWS AND DEPARTMENTAL ENQUIRIES

(Orient Publishing Company, New Delhi, 3rd Edition, 2004)
SAEED, MANZAR, MALIKS COMMENTARY ON THE PREVENTION OF

CORRUPTION ACT, 1988 (Delhi Law House, Delhi, 1st Edition, 2008)
SETH & CAPOORS, COMMENTARIEON PREVENTION OF CORRUPTION

ACT WITH A TREATISE ON ANTI CORRUPTION LAWS AND SPECIAL
EMPHASIS ON DELHI SPECIAL POLICE ESTABLISHMENT ACT, 1946 (Law
Publishers (India) Pvt. Ltd.), Allahabad, 4th Edition, 2003)
SINGH, BHUVNESHWAR & PAWAR, KUNDAN, BENEFIT OF DOUBT (Soni

Book Agency, Aurangabad, 1st Edition, 2008)
VIBHUTE, DR.KI, PSA PILLAIS CRIMINAL LAW (LexisNexis

ButterworthsWadhwa, Nagpur, 10th Edition, 2012)
TABLE OF CASES
A. Wati Ao v. State of Manipur, 1995 (6) SCC 488 ................................................................... 8
A.R. Antulay v. R.S. Nayak, (1984) 2 SCC 183. ........................................................................ 5
Abdulla Mohammed Pagarkar v. State, 1980 (3) SCC 110 ...................................................... 8
Abhay Singh Chautala v. Central Bureau of Investigation, (2011) 3 SCC (Cri) 1 ................... 3
Anjani Kumar v. State of Bihar and Anr., AIR 2008 SC 1992: 2008 (6) SCALE 185, (2008) 5
Ashok Kumar Chatterjee v.State Of M.P., AIR 1989 SC 1890. .............................................. 22
B. Saha and Ors. v. M.S. Kochar, 1979 Cri LJ 1367 (SC): MANU/SC/0075/1979. ................ 2
Page VI

C. Chenga Reddy v. State of A.P., AIR 1996 SC 3390. ........................................................... 21
C.K. Damodaran Nair v. Govt of India, 1996 (9) SCC 477 ...................................................... 8
C.K. Jaffer Shariefv.State (Through CBI),2012 (11) SCALE 71. ......................................... 6, 8
Choudhury Praveen Sultan v. State of West Bengal, AIR 2009 SC 1404: (2009) 3 SCC 398.. 1
Gambir v.State of Maharashtra, AIR 1982 S.C 1157. ............................................................ 20
Himachal Pradesh Adm. v. Om Prakash, AIR 1972 SC 975. ................................................. 25
Inspector of Police, Tamil Nadu v. John David, (2011) 5 SCC 509. ...................................... 22
K. Kalimuthuv.State by D.S.P., AIR 2005 SC 2257: (2005) 4 SCC 512. .................................. 1
K.R. Purushothamanv.State of Kerala,AIR 2006 SC 35: 2005 Cri LJ 4648 (SC): 2005 (8)
SCALE 618: (2005) 12 SCC 631. ...................................................................................... 7, 8
Keshab Deo Bhagat v. Emperor, AIR 1945 Cal. 93................................................................ 19
Krishna Ramv. State of Rajasthan,AIR 2009 SC 2112: 2009 (3) SCALE 810: (2009) 11 SCC
708. ......................................................................................................................................... 7
Kusum Ankama Rao v.State of A.P, AIR 2008 SC 2819. ........................................................ 21
Lalu Prasad Yadav v. State of Bihar, (2007) 1 SCC 49. ........................................................... 5
M. Mohiuddin v. State of Maharastra, 1995 (3) SCC 567 ........................................................ 8
Major S.K. Kale v. State of Maharashtra, (1977) 2 SCC 394 ............................................. 8, 11
Mohd. Khalid v. State of West Bengal, 2002 7 SCC 334......................................................... 18
N.C.T. of Delhi v. Jaspal Singh, (2003) 10 SCC 86. ............................................................... 18
Parkash Singh Badal and Anr. v. State of Punjab and Ors., (2007) 1 SCC 1........................... 5
Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1......................................................... 7
Pawan Mandal v. State of Punjab ........................................................................................... 20
Prakash Bicholkar v. State, 1981 Cri LJ 440 (Goa). ............................................................... 20
R . Balakrishna Pillai v. State of Kerala, 2003 (2) SCALE 560: (2003) 9 SCC 700. ............... 6
R. Balakrishna Pillai v. State of Kerala, 2003 (9) SCC 700. .................................................... 8
Page VII

R. Sai Bharathi v. J. Jayalalitha, (2004) 2 SCC 9. .................................................................. 12
R. Venkatakrishnan v. Central Bureau of Investigation,AIR 2010 SC 1812: 2009 (11)
SCALE 102: (2009) 11 SCC 737. .......................................................................................... 7
Raghunath Anant Govilkar v. State of Maharashtra and Ors., 2008Cri LJ 2054:
2008(2)SCALE303: (2008)11SCC289 .................................................................................. 3
Ram Krishan v. State of Delhi, 1956 SCR 182 .......................................................................... 8
Saju v. State of Kerala, (2001) 1 SCC 378: AIR 2001 SC 175. .............................................. 17
Sankaran Moitra v. Sadhan Das, AIR 2006 SC 1599: (2006) 4 SCC 584.(FB) ....................... 3
Soma Chakravarthy v. State, 2007 (5) SCC 403 ....................................................................... 8
State of Orissa v. Ganesh Chandra Jew, AIR 2004 SC 2179: (2004) 8 SCC 40: ..................... 1
State of Rajasthan v. Raja Ram, AIR 2003 SC 3601............................................................... 21
State of Uttar Pradesh v. Sheetla Sahai, (2009) 8 SCC 617 ..................................................... 3
Subash Parbat Sonvane v. State of Gujarat,AIR 2003 SC 2169: 2002 (4) SCALE 40: ......... 10
U. Nalini Madhavan v. State Of Kerala, Criminal Revision Petition No.3906 of 2009,
decided on 16 September, 2010. .......................................................................................... 18
Page VIII

STATEMENT OF JURISDICTION
The Appellants have approached the Honble High Court under Section 378 of Code
of Criminal Procedure.
STATEMENT OF FACTS
I.
The Department of Agriculture, Government of Satya Pradesh planned to set up an
International Food Market (IFM), for marketing of agriculture food products and milk food
products, near the metropolitan city of MohenderGarh to fulfil the promise to people as an
election manifesto of the Farmer's Party, which was in power. The proposal initiated by the
Agriculture Minister of Satya Pradesh Mr.HoshiarRai(herein referred to as Accused 1) was
approved by the Cabinet on 23rd June 2010.
The Department of Agriculture recommended on 28th August 2010 that the land in
village Partap Nagar situated on the National Highway NH- 44 leading from MohenderGarh
to SurenderGarh, is suitable location for the Project. The recommendation was accordingly
mooted by the Ministry of Agriculture and was accepted by the Cabinet of Ministers at its
meeting held on 4th October 2010.
The Collector MohenderGarh initiated the process of acquisition of the land for public
purpose and issued notification under Section 4 of the Land Acquisition Act, 1894, on 28th
December 2010 for the acquisition of land situated in Village Partap Nagar, District
MohenderGarh.
II.
Mrs.Nirmala Devi wife of Mr.HoshiarRai the Agriculture Minister, entered into an agreement
to sell land with one Mr.Kisan Singh of the village Partap Nagar in that village @ Rs. 2 Lac
per kanal through a written agreement dated 10th December, 2010.The sale deed in favour of
Mrs.Nirmala Devi was executed on 18th February 2011 and mutation in favour of
Mrs.Nirmal Devi was also sanctioned on 24th February 2011. Incidentally, the Land
purchased by Mrs.Nirmala Devi was also a part of the notified land for setting up
International Food Market.
Page IX
III.
The Department of Agriculture made a modified proposal on 14 March 2011 that it intends to
confine the IFM Project to Agriculture products only and proposed to drop the plan to set up
International Market for Milk Food Products. Hence land situated on the right side of the
National Highway was found to be enough to meet the requirement of the Satya Pradesh
International Market for Agricultural Food Products (SP-IMAP).
The amended proposal was considered by the Ministry of Agriculture of the State on
10 April 2011and recommendations were forwarded to the Cabinet of Ministers for approval.
The Cabinet of Ministers approved the amended proposal at its meeting held on 30th April
2011. Thereafter, the Collector MohenderGarh, on receiving directions from the Government,
de-notified the right side of land on the other side of the NH-11 on 25 May 2011.
IV.
Mrs.Nirmala Devi incorporated a private company on 20th July 2011 with the name Nirmala
Devi International Market for Milk Products (ND-IMMP) Private Ltd. The other members of
the company were Mr.HoshiarRai, her husband Mr.Kismat Kumar her son, Ms.Gulab Rani,
her daughter and also Mr.KunalDev(Herein referred to as Accused 2) and Mr. Naveen
Pal(Herein referred to as Accused 3). Each member has the share holdings in the company
as Mrs.Nirmala Devi 25%, Mr.Kismat Kumar and Ms.Gulab Rani 20% each,
Mr.HoshiarRai 15% and Mr.KunalDev was Director Agriculture and Mr. Naveen Pal was
Secretary Planningand had 10% each.The afore mentioned land in village Partap Nagar
purchased by Mrs.Nirmala Devi in her name was transferred to the ND-IMMP Pvt. Ltd. @
Rs. 10 lac per kanal on 10 September 2011. The necessary funds were procured by the
company through individual contribution of the shareholders and also through borrowing
from differentsources including banks and other financial institutions.
The ND-IMMP Pvt. Ltd. applied on 10 October 2011 to the Department of
Agriculture for permission to set up the market for Milk Products at village Partap Nagar in
the aforesaid land purchased by Mrs.Nirmala Devi and now belonging to ND-IMMP Pvt. Ltd.
The proposal was recommended by the Department of Agriculture and was further processed
and approved by the other concerned Government departments.
V.
Page X

A newspaper report appeared in the 'Vigilant Eyes'a daily Newspaper on 16th February 2012
reporting that the Mr.HoshiarRai Minister of Agriculture Punjab has abused his official
position by obtaining undue advantage to himself. He purchased the land in village Partap
Nagar in the name of his wife Mrs.Nirmala Devi with knowledge and information about the
proposal of the Government to set up an International Market of Food Products in Village
Partap Nagar. A Public Interest Litigation (PIL) was also filed before the High Court by the
Editor of 'Vigilant Eyes'for impartial probe through Central Government Investigation
Agency. The High Court directed the Central Bureau of Investigation (CBI) to probe the
matter through its order dated 28th February 2012.
VI.
The CBI initiated an inquiry on 15th March 2012. The Chief Minister sought the resignation
from Mr.HoshiarRai, which was submitted by him on 18 March 2012. The same was
accepted on 20 March 2012. Meanwhile Assembly Election of SatyaPradeshwas due in May
2012. After the election the same political party viz. Farmers' Party again came to power.
Mr.HoshiarRai also won the assembly election. He was sworn in as a Cabinet Minister on 15
June 2012 and allocated theportfolio of Minister of Industries.
VII.
On the basis of CBI probe a criminal case was registered on 18 April 2012 against
HoshiarRai, KunalDev and Naveen Pal for the offences under Section 13 (1) (d) (i) & (ii)
punishable under Section (13) (2) of the Prevention of Corruption Act, 1988, Sections 169
and 120 B of the Indian Penal Code 1860. After investigation the Charge Sheet was filed
before the Special Judge, MohenderGarh on 07 July 2012 against all the three accused. The
Court framed charges under Section 13 (2) read with Section 13 (i) (d) (i) & (ii) of the
Prevention of Corruption Act, 1988, Sections 169 and 120 B of the Indian Penal Code, 1860
against all three accused.
The Trial Court heard arguments advanced on either side, considered the evidence
brought it and the points urged in the arguments and came to the conclusion that prosecution
has failed to prove the charges beyond reasonable doubt and acquitted all the three accused
on 2nd of January 2013.
Page XI

ISSUES RAISED
ISSUE I
WHETHER OR NOT SANCTION FOR PROSECUTION IS REQUIRED
ISSUE II
WHETHER OR NOT THE ACCUSED ARE GUILTY FOR CRIMINAL
MISCONDUCT UNDER THE PREVENTION OF CORRUPTION ACT OF 1988
ISSUE III
WHETHER OR NOT THE ACCUSED ARE GUILTY UNDER SECTION 169 OF
INDIAN PENAL CODE
ISSUE IV
WHETHER OR NOT THE ACCUSED ARE GUILTY UNDER SECTION 120B OF
INDIAN PENAL CODE
Page XII

SUMMARY OF ARGUMENTS
THAT THE SANCTION FOR PROSECUTION IS NOT REQUIRED

In the instant case, there is no requirement of sanction for prosecution. The sanction
contemplated in Section 197 of the Code concerns a public servant who "is accused of any
offence alleged to have been committed by him while acting or purporting to act in the
discharge of his official duty", whereas the offences contemplated in the PC Act are those
which cannot be treated as acts either directly or even purportedly done in the discharge of
his official duties. That the use of the expression, official duty implies that the act or
omission must have been done by the public in the course of his service and that it should
have been in discharge of his duty. There is no need for sanction as the accused ceased to be a
public servant on 20th March 2012 and was holding a different office when the cognizance
was taken by the Special Judge.
THAT THE ACCUSED ARE GUILTY OF CRIMINAL MISCONDUCT UNDER THE
PC ACT
That to attract the provisions of Section 13 (1) (d) of the PC Act, public servant should obtain
for himself or for any other person any valuable thing or pecuniary advantage by corrupt or
illegal means or by abusing his position as a public servant. In the instant case there were
corrupt or illegal means being worked out by the accused to get the pecuniary advantage.
That the pecuniary advantage was being derived by the accused as they got the project for
IMMP of the Government cancelled which was earlier mooted upon by the Ministry of
Agriculture and hence by the establishment of the ND-IMMP Pvt. Ltd.
THAT THE ACCUSED ARE GUILTY UNDER SECTION 169 OF INDIAN PENAL
CODE
This section is an extension of Section 168. It prohibits a public servant from purchasing or
bidding for property which he is legally bound not to purchase. The emphasis laid is that the
Page XIII

principle underlying under Section 169 IPC is that a public servant is in fiduciary obligation
in relation to property which is in his charge or over which he could have control and he
should not put himself in a position of conflict of interest between his public duty in relation
to that property. Article 163 (3) provides that before a Minister enters upon his office, the
Governor shall administer to him the oath of office and secrecy according to the forms set out
in the 3rd schedule. The interests of the Nirmala Devi International Market for Milk Products
(ND-IMMP) Private Ltd. in which the accused held a share, were in conflict with the duty
which the accused had towards the state as being the Agricultural Minister.
That in exercise of the powers conferred by sub-section (1) of section 3 of the All India
Services Act, 1951 (61 of 1951), the Central Government after consultation with the
Governments of the State concerned, made The All India Services (conduct) Rules, 1968.
The accused under these rules/regulations were thus legally bound. The acts of the accused
of investing in shares in private business which is likely to embarrass or influence him in the
discharge of his official duties amounts to breaking the All India Services (conduct) Rules,
1968.
THAT THE ACCUSED ARE GUILTY UNDER SECTION 120B OF INDIAN PENAL
CODE
Criminal conspiracy has been defined Under Section 120-A of Indian Penal Code. In the
instant case, all the three accused are members of Nirmala Devi International Market for Milk
Products (ND-IMMP) Private Ltd. which has taken permission to open a similar project
which was being dropped by the Agriculture Minister, even it was an election manifesto of
the Farmer's Party, which was in power. In the instant case, all the three accused worked
together and abused their position as public servant and doing acts which they were not
bound to do. They notified the land and purchased at cheaper process and then by denotifying the land illegally which was against public interest buy the same land again as a
private company.
Page XIV

ARGUMENTS ADVANCED
I.
THAT THE SANCTION FOR PROSECUTION IS NOT REQUIRED
1. That the sanction for prosecution is being defined under Section 197 of the Code of
Criminal Procedure of 1973(herein referred to as The Code) and to be precise is being
defined under sub-section (1)1 for the instant case. Such being the nature of the provision
the question is how should the expression, any offence alleged to have been committed by
him while acting or purporting to act in the discharge of his official duty, be understood?
What does it mean? Official according to dictionary, means pertaining to an office, and
official act or official duty means an act or duty done by an officer in his official capacity. 2
2. That the use of the expression, official duty implies that the act or omission must have
been done by the public servant in the course of his service and that it should have been in
discharge of his duty. The section does not extend its protective cover to every act or
omission done by a public servant in service but restricts its scope of operation to only
those acts or omissions which are done by a public servant in discharge of official duty. If
on facts, therefore, it is prima facie found that the act or omission for which the accused
was charged had reasonable connection with discharge of his duty, then it must be held
that official to which applicability of Section 197 of the Code cannot be disputed.3
Prosecution of Judges and public servants - (1) When any person who is or was a Judge or Magistrate or a
public servant not removable from his office save by or with the sanction of the Government is accused of any
offence alleged to have been committed by him while acting or purporting to act in the discharge of his official
duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a
person who is employed or, as the case may be, was at the time of commission of the alleged offence employed,
in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is
employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection
with the affairs of a State, of the State Government: 1[ Provided that where the alleged offence was committed
by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article
356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government"
occurring therein, the expression Central Government were substituted.
2
State of Uttar Pradesh v. ParasNath Singh, 2009 Cri LJ 3069 (SC): (2009) 6 SCC 372. (FB). See also State of
Orissa v. Ganesh Chandra Jew, AIR 2004 SC 2179: (2004) 8 SCC 40: 2004 Cri LJ 2011 (SC); Choudhury
Praveen Sultan v. State of West Bengal, AIR 2009 SC 1404: (2009) 3 SCC 398.
3
K.Kalimuthuv.State by D.S.P., AIR 2005 SC 2257: (2005) 4 SCC 512.
Page 1

3. That the words any offence alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty employed in Section 197(1) of the
Code, are capable of a narrow as well as a wide interpretation. If these words are
construed too narrowly, the section will be rendered altogether sterile, for, it is no part of
an official duty to commit an offence, and never can be. In the wider sense, these words
will take under their umbrella every act constituting an offence, committed in the course of
the same transaction in which the official duty is performed or purports to be performed.
The right approach to the import of these words lies between two extremes. While on one
hand, it is not every offence committed by a public servant while engaged in the
performance of his official duty, which is entitled to the protection of Section 197(1), an
Act constituting an offence, directly and reasonably connected with his official duty will
require sanction for prosecution and the said provision.4Before Section 197 can be
invoked, it must be shown that the official concerned was accused of an offence alleged to
have been committed by him while acting or purporting to act in the discharge of his
official duties.5
4. The Court is called upon to consider whether the public servant was acting or purporting
to act in discharge of his duty or it was merely a cloak for doing illegal act under the
excuse of his status as a public servant and by taking undue advantage of his position, he
was committing an offence or an unlawful act. In such situations, when the question
comes up for consideration before a court of law as to the applicability or otherwise of
Section 197 of the Code, it is not only the power but the duty of the Court to apply its
mind to the fact-situation before it. It should ensure that on the one hand, the public
servant is protected if the case is covered by Section 197 of the Code and on the other
B. Saha and Ors. v. M.S. Kochar, 1979 Cri LJ 1367 (SC): MANU/SC/0075/1979.
Anjani Kumar v. State of Bihar and Anr.,AIR 2008 SC 1992: 2008 (6) SCALE 185, (2008) 5 SCC 248: 2008
Cri LJ 2558 (SC).
5
Page 2

hand, appropriate action would be allowed to be taken if the provision is not attracted and
under the guise of his position as public servant, he is trying to take undue advantage.6
5. It is not necessary that the accused must act in their official capacity but even where a
public servant purports to act in their official capacity, same would attract the provisions
of Section 197 of the Code.7 The protection under Section 197 is available only when the
alleged act done by the public servant is reasonably connected with the discharge of his
official duty and is not merely a cloak for doing the objectionable act. There should
always be a reasonable connection between the act done and the official duty. Use of the
expression official duty implies that the act or omission must have been done by the
public servant in the course of his service and that it should have been in the public service
and discharge of his duty. Section does not extend its protective cover to every act or
omission done by a public servant in service but restricts its scope of operation to only
those acts or omissions which are done by a public servant in discharge of official duty.8
6. If the authority vested in public servant is misused for doing things which are not
otherwise permitted under the law, such acts cannot claim protection of Section 197 of
Code and have to be considered de hors the duties which a public servant is required to
discharge or misuse the authority.9If on the date of taking cognizance, accused continues
to be a public servant but in a different capacity or is holding a different office than the
one alleged to have been abused then no sanction for prosecution is required under Section
19 of the Prevention of Corruption Act of 1988(Herein referred to as PC Act) and
Section 197 of the Code.10
SankaranMoitra v. Sadhan Das, AIR 2006 SC 1599: (2006) 4 SCC 584.(FB)

State of Uttar Pradesh v. SheetlaSahai, (2009) 8 SCC 617.
8
RaghunathAnantGovilkar v. State of Maharashtra and Ors.,2008Cri LJ 2054: 2008(2)SCALE303:
(2008)11SCC289.
9
ChowdharyParveen Sultana v. State of West Bengal and Anr., AIR 2009 SC 1404: 2009 (1) SCALE 374:
(2009) 3 SCC 398.
10
Abhay Singh Chautala v. Central Bureau of Investigation, (2011) 3 SCC (Cri) 1: 2011 (6) SCALE 658.
7
Page 3

7. In the instant case, there is no requirement of sanction for prosecution. According to the
Supreme Court in Abhay Singh Chautalas11 Case held that there is no requirement of
sanction for prosecution under Section 19 of the PC Act as well as Section 197 of the
Code against the public servant who ceased to be public servanti.e- HoshiarRai,
Agriculture Minister (Herein referred to as Accused 1) on the date of cognizance of the
offence. As the Accused - 1 ceased to be a public servant on 20th March 201212 and was
holding a different office when the cognizance was taken by the Special Judge.13 Also that
the Sanction for prosecution under Section 197 of the Code was also being curtailed down
in Abhay Singh Chautalas case.
a. That Section 19 of PC Act and Section 197 of the Code act in different spheres
8. That the sanction for prosecution for the Prevention of Corruption Act is being defined
under Section 1914and Section 197 of the Code of Criminal Procedure also defines the
11
2011 (6) SCALE 658.

Line 1, Para 2, Page 4, Moot Court Proposition.
13
Line 5(last line), Para 3, Para 4, Moot Court Proposition.
14
Previous Sanction necessary for Prosecution - (1) No court shall take cognizance of an offence punishable
under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous
sanction - (a) in the case of a person who is employed in connection with the affairs of the Union and is not
removable from his office save by or with the sanction of the Central Government, of that Government; (b) in
the case of a person who is employed in connection with the affairs of a State and is not removable from his
office save by or with the sanction of the State Government, of that Government; (c) in the case of any other
person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any
doubt arises as to whether the previous sanction as required under sub- section (1) should be given by the
Central Government or the State Government or any other authority, such sanction shall be given by that
Government or authority which would have been competent to remove the public servant from his office at the
time when the offence was alleged to have been committed. (3) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974) - (a) no finding, sentence or order passed by a special Judge shall be
reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error,
omission or irregularity in, the sanction required under sub-section (1) unless in the opinion of that court, a
failure of justice has in fact been occasioned thereby; (b) no court shall stay the proceedings under this Act on
the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied
that such error, omission or irregularity has resulted in a failure of justice; (c) no court shall stay the proceedings
under this Act on any other ground and no court shall exercise the powers of revision in relation to any
interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under subsection (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or
resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have
been raised at any earlier stage in the proceedings. Explanation.- For the purposes of this section,-- (a) sanction
includes competency of the authority to grant sanction; (b) a sanction required for prosecution includes
reference to any requirement that the prosecution shall be at the instance of a specified authority or with the
sanction of a specified person or any requirement of a similar nature.
12
Page 4

sanction for prosecution. That following A.R. Antulay15there is no need to obtain sanction
for prosecution of a person, alleged to have committed offence(s) in the capacity of a
public servant, where cognizance of such offence(s) is taken after he has already ceased to
hold that office, though he may continue to be a public servant in any other capacity at the
time of taking cognizance. Section 19(1) is time and offence related. 16 That in the instant
case when the cognizance was taken by the Special Judge at that time the accused ceased
to be public servant.17
9.
The Section 197 and Section 19 operate in conceptually different fields? In cases covered
under the PC Act, in respect of public servants the sanction is of automatic nature and thus
factual aspects are of little or no consequence. Conversely, the substratum and basic
features of the case have to be considered to find out whether the alleged act has any nexus
with the discharge of duties. Position is not so in case of Section 19 of the PC Act.18 In a
situation where two constructions were eminently reasonable, Court had to accept one that
sought to eradicate corruption to one which sought to perpetuate it. A criminal proceeding
was not a proceeding for vindication of a private grievance but it was a proceeding
initiated for purpose of punishment to offender in interest of society. Procedural provisions
relating to sanction must be construed in such a manner as to advance causes of honesty
and justice and good governance as opposed to escalation of corruption.19
10. The sanction contemplated in Section 197 of the Code concerns a public servant who is
accused of any offence alleged to have been committed by him while acting or purporting
to act in the discharge of his official duty, whereas the offences contemplated in the PC
Act are those which cannot be treated as acts either directly or even purportedly done in
15
A.R. Antulay v. R.S. Nayak, (1984) 2 SCC 183.

Parkash Singh Badal and Anr.v. State of Punjab and Ors., (2007) 1 SCC 1.
17
Page 4, Para 2, Moot Court Proposition.
18
Lalu Prasad Yadavv. State of Bihar, (2007) 1 SCC 49.
19
Dr.SubramanyumSwamy v. Dr.Manmohan Singh and anr., AIR 2012 SC 1185: 2012 (2) SCALE 12: (2012) 3
SCC 64.
16
Page 5

the discharge of his official duties. Parliament must have desired to maintain the
distinction and hence the wording in the corresponding provision in the Prevention of
Corruption Act of 1947 was materially imported in the new PC Act without any change in
spite of the change made in Section 197 of the Code.20
II.
THAT THE ACCUSED ARE GUILTY ON ACCOUNT OF CRIMINAL

MISCONDUCT UNDER PREVENTION OF CORRUPTION ACT
11. That a fundamental principle of criminal jurisprudence with regard to the liability of an
accused which may have application to the present case is to be found in the work
Criminal Law by K.D. Gaur. The relevant passage from the above work may be
extracted below: Criminal guilt would attach to a man for violations of criminal law.
However, the rule is not absolute and is subject to limitations indicated in the Latin
maxim, actus non facitreum, nisi mens sit rea21. It signifies that there can be no crime
without a guilty mind. To make a person criminally accountable it must be proved that an
act, which is forbidden by law, has been caused by his conduct, and that the conduct was
accompanied by a legally blameworthy attitude of mind. Thus, there are two components
of every crime, a physical element and a mental element, usually called actusreus and
mensrea respectively.22
12. That to attract the provisions of Section 13 (1) (d) of the PC Act, public servant should
obtain for himself or for any other person any valuable thing or pecuniary advantage by
corrupt or illegal means or by abusing his position as a public servant. Therefore, for
convicting a person under the provisions of Section 13 (1) (d) of the PC act, there must be
evidence on record that the accused has obtained for himself or for any other person, any
valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his
20
KalicharanMahapatra v. State of Orissa,AIR1998 SC 2595: 1998(4) SCALE 359: (1998) 6 SCC 411.
R .BalakrishnaPillaiv. State of Kerala, 2003 (2) SCALE 560: (2003) 9 SCC 700.
22
C.K. JafferShariefv.State (Through CBI),2012 (11) SCALE 71.
21
Page 6

position as a public servant obtained for himself, or for any person, any valuable thing, or
pecuniary advantage without any public interest.23
13. The ingredients of the offence under Section 5(1)(d) later on with amendment under the
Prevention of Corruption Act are defined under Section 13(1)(d) are: (1) that the accused
should be a public servant, (2) that he should use some corrupt or illegal means or
otherwise abuse his position as a public servant, (3) that he should have obtained a
valuable thing or pecuniary advantage, and (4) for himself or any other person.24Where the
material on record leads to a sole and inescapable conclusion of guilt of the accused, the
judgment of acquittal will call for interference by the Appellate Court.25
14. The offences under Section 13(1)(d) and the offences under Section 8 and 9 of the Act are
different and separate. Assuming, Section 13(1)(d)(i) covers public servant who obtain for
himself or for any other person any valuable thing or pecuniary advantage by corrupt or
illegal means, that would not mean that he will not fall within the scope of Sections 8 and
9. The ingredients are different.26
a. That the ingredients under Section 13(1)(d)(i) are being fulfilled
15. That the sub clause (i) of Section 13(1)(d)27 is being stated as by corrupt or illegal means,
obtains for himself or for any other person any valuable thing or pecuniary advantage. A
bare reading of Section 13 of the Act would go to show that the offence contemplated
therein is committed if a public servant obtains for himself or any other person any
valuable thing or pecuniary advantage by corrupt or illegal means; by abusing his position
as public servant or without any public interest. The aforesaid provision of the Act, i.e.,
Section 13(1)(d) are somewhat similar to the offence under Section 5(1)(d) of the
23
K.R. Purushothamanv.State of Kerala,AIR 2006 SC 35: 2005 Cri LJ 4648 (SC): 2005 (8) SCALE 618: (2005)
12 SCC 631.
24
R. Venkatakrishnanv. Central Bureau of Investigation,AIR 2010 SC 1812: 2009 (11) SCALE 102: (2009) 11
SCC 737. See also Dalpat Singh v. State of Rajasthan, MANU/SC/0045/1968: AIR 1969 SC 17.
25
Krishna Ramv. State of Rajasthan,AIR 2009 SC 2112: 2009 (3) SCALE 810: (2009) 11 SCC 708.
26
Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1.
27
PC Act.
Page 7

Prevention of Corruption Act, 1947.28The offence becomes complete on the failure of the
public servant to account or explain such excess.29To attract the provisions of Section 13
(1) (d) of the Prevention of Corruption Act, public servant should obtain for himself or for
any other person any valuable thing or pecuniary advantage by corrupt or illegal means or
by abusing his position as a public servant. Therefore, for convicting a person under the
provisions of Section 13 (1) (d) of the Prevention of Corruption Act, 1988, there must be
evidence on record that the accused has obtained for himself or for any other person, any
valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his
position as a public servant obtained for himself, or for any person, any valuable thing, or
pecuniary advantage without any public interest.30Even in cases under the Prevention of
Corruption Act, it is not necessary that the prosecutor is required to prove its case only by
direct evidence and the same can be based upon circumstantial evidence alone.31That
mensrea or criminal intent is an essential ingredient which the prosecution has to prove in
every case.32
16. In the instant case there were corrupt or illegal means being worked out by the accused to
get the pecuniary advantage. That the project for the International Market for Milk
Products was being mooted by the Ministry of Agriculture which was accepted by the
Cabinet of Ministers on 4th October 2010.33Extensive survey was conducted by the
28
C.K. JafferSharief v. State (Through CBI), 2012 (11) SCALE 71: (2013) 1 SCC 205.
State by Central Bureau of Investigationv. Shri S. Bangarappa,2000 (7) SCALE 557, [2000] Supp 4 SCR 726,
2001 CriLJ 111 (SC).
30
K.R .Purushothamanv. State of Kerala,2005 (8) SCALE 618: (2005) 12 SCC 631: 2005 CriLJ 4648 (SC): AIR
2006 SC 35.
31
G. Mohan v. State, (2004) 7 SCC 700.
32
Soma Chakravarthy v. State, 2007 (5) SCC 403. See also M. Narayanan Nambiarv. State of Kerala, 1963
Supp (2) SCR 72; Ram Krishan v. State of Delhi, 1956 SCR 182; Major S.K. Kale v. State of Maharashtra,
(1977) 2 SCC 394; S.P. Bhatnagar v. State of Maharashtra, (1979) 1 SCC 535; Abdulla Mohammed Pagarkar
v. State, 1980 (3) SCC 110; A. WatiAo v. State of Manipur, 1995 (6) SCC 488; C.K. Damodaran Nair v. Govt of
India, 1996 (9) SCC 477; M. Mohiuddin v. State of Maharastra, 1995 (3) SCC 567; R. BalakrishnaPillai v.
State of Kerala, 2003 (9) SCC 700.
33
29
Page 8

department of Department in the months of July-August 2010.34The acquisition of the land
was being initiated under Section 4 of the Land Acquisition act.35 The wife of the accused
bought land which was notified by the government. The executive of the sale deed was on
18th February 2011 and mutation in favour was sanctioned on 24th February 2011.36 Thus
the department of Agriculture made a modified proposal on 14th March 2011 that it
intended to drop the International Market for Milk Products.37 The amended proposal was
considered by the Ministry of Agriculture of the State on 10th April 2011 and
recommendations were being forwarded to the Cabinet of Ministers.38 The Cabinet
accepted the amended proposal at its meeting held on 30th April 2011.39 Thus the Collector
de-notified the land on 25th May 2011 which was earlier recognized by the Ministry of
Agriculture.40 Thus the corrupt or illegal means which are being adopted by the accused
are that the wife of the accused bought the land which was under the notified land.41 After
buying the land later on the Ministry of Agriculture under the accused proposed for the denotification of the land. By the de-notification of the land the accused was getting the
pecuniary advantage which will further be clearly visible. The wife of the accused
incorporated a private company on 20th July and hence named it as Nirmala DeviInternational Market for Milk Products ( Hereinreferred to as ND-IMMP).42 That the
pecuniary advantage was being derived by the accused as they got the project for
International Market for Milk Products (Herein referred to as IMMP) of the Government
cancelled which was earlier mooted upon by the Ministry of Agriculture. And hence by
the establishment of the ND-IMMP. The illegal or corrupt means was that the land was
34
Line 7, Para 1, Page 1, Moot Court Competition.

Line 17(2nd Last line from bottom), Para 1, Page 1, Moot Court Proposition.
36
37
38
39
Line 1, Para 3, Page 2-3, Moot Court Proposition.
40
41
Line 7, para 1, Page 2, Moot Court Proposition.
42
35
Page 9

bought at very less price which was sold out by the wife of the accused at an inflated price
which gave pecuniary advantage to the family of the accused. The share holders of NDIMMP were also senior officials of the Ministry of Agriculture.43
b. That the ingredients under Section 13(1)(d)(ii) are being fulfilled
17. That the sub-clause (ii) of Section 13(1)(d) is stated as by abusing his position as a public
servant, obtains for himself or for any other person any valuable thing or pecuniary
advantage. For an offence under Section 5(1)(d) read with Section 5(2) of the Act is
concerned. The prosecution has to prove that the accused obtained the valuable thing or
pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a
public servant and that too without the aid of the statutory presumption under Section 4(1)
of the Act as it is available only in respect of offences under Section 5(1)(a) and (b) -- and
not under Section 5(1)(c), (d) or (e) of the Act. Obtain means to secure or gain
(something) as the result of request or effort (Shorter Oxford Dictionary). In case of
obtainment the initiative vests in the person who receives and in that context a demand or
request from him will be a primary requisite for an offence under Section 5(1) (d) of the
Act unlike an offence under Section 161 I.P.C, which, as noticed above, can be,
established by proof of either acceptanceor obtainment.44
18. The abuse of position in order to come within the mischief of the section must necessarily
be dishonest so that it may be proved that the accused caused deliberate loss to the
department. That it is for the prosecution to prove affirmatively that the accused by corrupt
or illegal means or by abusing his position obtained any pecuniary advantage for some
other person. It would, therefore, be necessary to find out in this case as to whether the
accused abused their position and acted dishonestly or with a corrupt or oblique
43

Subash Parbat Sonvanev. State of Gujarat,AIR 2003 SC 2169: 2002 (4) SCALE 40: (2002) 5 SCC 86: 2002
Supp (2) SCC 86.(FB). See also C.K. Damodaran Nair v. Govt of India, AIR 1997 SC 551: 1997 (1) SCALE
126: (1997) 9 SCC 477.
44
Page 10

motive.45The abuse of position, as held by this Court, must necessarily be dishonest so that
it may be proved.46
19. That in the instant the accused is the Minister of Agriculture in the state of Satya
Pradesh.47 The recommendation of the land was being mooted by the Ministry of
Agriculture and got the recommendation of the Cabinet of Ministers on 4th October
2010.48 The notification of the acquisition of the land was being issued on 28th December
2010.49 The wife of the accused was sanctioned the mutation in favour on 24th February
2011.50 After the wife of the accused bought the land in the notified land for IMMP at an
inexpensive price of Rs.2 lakh per acre.51Later on the land for IMMP was de-notified for
which the proposal was advanced by the Ministry of Agriculture on 10th April 2011.52
Even though the Department of Agriculture made extensive survey53and the department
itself recommending the land to be suitable for the project.54And the Cabinet of Ministers
accepting the amended proposal on 30th April 2011.55That the accused 1 is the Minister
of Agriculture who is the Head of the Ministry of Agriculture and also the accused 2
who is the senior functionary of the State. They were the ones who formed the proposal
for the IMMF and later on the amended proposal for dropping of the IMMP. Then were
the shareholders under ND-IMMP.56 Thus the accused abused their position by getting the
IMMP project of the government rejected so that later on it can pave way for the
establishment of the private Company ND-IMMP of which they were the shareholders
45
A.S. Krishnaswamyv.State of Maharashtra,AIR 1979 SC 826: 1979 Cri LJ 566 (SC): (1979) 1 SCC 535:
(1979) SCC (Cri) 323. See also Dalpat Singh v. State of Rajasthan, AIR 1969 SC 17: 1969 Cri LJ 262 (SC);
Trilok Chand Jain v. State of Delhi, AIR 1977 SC 666: 1977 CriLJ 254 (SC); Major S.K. Kale v. State of
Maharashtra, AIR 1977 SC 822: 1977 CriLJ 604 (SC).
46
Major S.K. Kale v.State of Maharashtra, AIR 1977 SC 822: (1977) 2 SCC 394.
47
48
Line 16(4th from last), Para 1, Page 1, Moot Court Proposition.
49
Line 18(Last line), Para 1, Page 1, Moot Court Proposition.
50
51
52
53
Line 7, Para 1,Page 1, Moot Court Proposition.
54
55
56
Line 6-7, Para 2, Page 3, Moot Court Proposition.
Page 11

which proved their pecuniary advantage. Also they abused their position by getting the
necessary permissions from the departments for the ND-IMMP.
III.
THAT THE ACCUSED ARE GUILTY UNDER SECTION 169 OF INDIAN

PENAL CODE
20. This section is an extension of Section 168. It prohibits a public servant from purchasing
or bidding for property which he is legally bound not to purchase.57 Section 16958 of IPC
bears the marginal heading "Public Servant unlawfully buying or bidding for property".
Section 169 IPC sets out that - (1) the person should be a public servant; (2) in such
capacity as public servant, he is legally bound not to purchase or bid 'certain property'; and
(3) either in his name or in the name of another or jointly, or in shares with others.59
21. That in exercise of the powers conferred by sub-section (1) of section 3 of the All India
Services Act, 1951 (61 of 1951), the Central Government after consultation with the
Governments of the State concerned, made The All India Services (conduct) Rules, 1968.
It is important to note that these rules have been made by the provision under a specific
statute. Public servant is prohibited from unlawfully buying or bidding property and such
prohibition must flow from law which includes enacted law and rules/regulations framed
there under.60 In this Act, the expression, "an all-India Service' means the service known
as the Indian Administrative Service or the service known as the Indian Police
Service.61Also, member of the Service means a member of an All India Service as
defined in section 2 of the All India Services Act, 1951.62 Section 2(b) of the rules defines
member of family as (i) the wife or husband as the case may be of such member, whether
57
K.D. Gaur, Indian Penal Code 299(Universal Law Publishers, New Delhi, 4th ed., 2009).
Whoever, being a public servant, and being legally bound as such public servant, not to purchase or bid for
certain property, purchases or bids for that property, either in his own name or in the name of another, or jointly,
or in shares with others, shall be punished with simple imprisonment for a term which may extend to two years,
or with fine, or with both; and the property, if purchased, shall be confiscated.
59
R. SaiBharathi v. J. Jayalalitha, (2004) 2 SCC 9.
60
R. SaiBharathi v.J. Jayalalitha (2004) 2 SCC 9.
61
Section 2, The All India Services Act, 1951.
62
Rule 2.(c) The All India Services (conduct) Rules, 1968
58
Page 12

residing with (such member) or not, but does not include a wife or husband separated
from the member of the Service by a decree or order of competent court; (ii) the son or
daughter or the step-son or step-daughter of such member and wholly dependent (on such
member) but does not include a child or step-child who is no longer in any way dependent
(on such member) or of whose custody the member of the Service has been deprived by or
under any law; and .
22. That Rule 1363 is of prime relevance. Part (e) clearly states that a member of service has
been restricted to take part in any registered company under the Companies Act, 1956
without the previous sanction of the Government. This provision has been laid down to
limit the action of civil servants in their private spheres which would potentially intervene
in public matters. Private trade or employment.-13(1) Subject to the provisions of sub-rule
(2), no member of the Service shall except, with the previous sanction of the
Government, (a) engage directly or indirectly in any trade or business, or (b) negotiated
for or undertake, any other employment, or (c) hold an elective office, or canvass for a
candidate or candidates for an elective office, in any body, whether incorporated or not,
or (d) canvass in support of any business of insurance agency, commission agency etc.
owned or managed by any member of his family, or (e) take part, except in the discharge
of his official duties, in the registration, promotion or management of any bank or other
company registered or required to be registered under theCompanies Act, 1956 (1 of
1956), or any other law for the time being in force, or of any co-operative society for
commercial purposes.
23. That the investment, lending and borrowing which may likely embarrass or influence the
servant in his discharge of duty has also been regularized under Rule 14. 64 This includes
restriction of servant in investing in any share, stock or other investments. The relevant
63
64
Rule 13 The All India Services (conduct) Rules, 1968

Rule 14 The All India Services (conduct) Rules, 1968
Page 13

provision has been reproduced as under: 14. Investment, lending and borrowing. (1) No
member of the Service shall speculate in any stock, share or other investments but this
provision will not apply to occasional investment made through Stock-brokers or other
persons duly authorised on licence under the relevant law. Explanation. Frequent
purchase or sale or both of shares, securities or other investments shall be deemed to be
speculation within the meaning of this sub-rule. 14 (2) No member of the service shall
make or permit any member of his family or any person acting on his behalf to make, any
investment which is likely to embarrass or influence him in the discharge of his official
duties. For this purpose, any purchase of shares from out of the quotas reserved for
Directors or their friends and associates, shall be deemed to be an investment which is
likely to embarrass the Government Servant. 14 (3) If any question arises whether any
transaction is of the nature referred to in sub-rule (1) or sub-rule (2), it shall be referred
to the Government for its decision. 14 (4) (i) No member of the Service shall save in the
ordinary course of business with a bank or a public limited company, himself or through
any member of his family or any person acting on his behalf. (a) lend or borrow or deposit
money as a principle or agent, to, or from, or with, any person or firm or private limited
company within the local limits of his authority or with whom he is likely to have official
dealings or otherwise place himself under pecuniary obligation to such person or firm;
or.
24. Article 163 (3) provides that before a Minister enters upon his office, the Governor shall
administer to him the oath of office and secrecy according to the forms set out in the 3rd
schedule. The oath under the Third schedule states, "I, A.B., do swear in the name of
God/solemnly affirm that I will not directly or indirectly communicate or reveal to any
person or persons any matter which shall be brought under my consideration or shall
become known to me as a Minister for the State of .....except as may be required for the
Page 14

due discharge of my duties as such Minister." From the above oath, it becomes very clear
that the Minister is required to act independently, impartially and occupies a fiduciary
position. This requires the Minister to act honestly and with good faith and do what he
believes to be in the best interests of the State. His powers are held in trust for the State
and must not be exercised for any purpose other than that for which the power was
conferred. Most importantly, a Minister must not take advantage of his position which
includes a duty not to make personal profit from his position.
25. That it was held that the oath of office is the prescription of a fundamental code of conduct
in the discharge of the duties of a Minister and not a mere moral obligation and binds him
throughout his tenure of office.65 Thus, the accused Mr.HoshiarRai has breached his
fundamental oath of office and acted dishonestly, in bad faith and discharged his power in
such a way which was harmful to public interest of the state. He took part in a private
venture, whose business depended on licenses, permits, etc., received or to be received
from the Government concerned, and thus used his influence of being a member of
parliament for his private gain as opposed to public, state interest. The interests of the
Nirmala Devi International Market for Milk Products (ND-IMMP) Private Ltd. in which the
accused held a share,66 were in conflict with the duty which the accused had towards the state
as being the Agricultural Minister. He ought not to have communicated the interests of the
Agricultural Ministry to his wife and to the other shareholders according to his oath and he
clearly violated the same as he agreed to be a part of a private company whose interests
clashed with his role of being a member of legislature.
26. It is submitted that Section 169 IPC embodies a prohibition on a public servant not to
purchase or bid for certain property being legally bound as such a public servant not to
purchase or bid for that property. The emphasis laid is that the principle underlying under
65
66
K.C. Chandy v.R. BalakrishnaPillai AIR 1986 Ker 116.

Page 15

Section 169 IPC is that a public servant is in fiduciary obligation in relation to property
which is in his charge or over which he could have control and he should not put himself
in a position of conflict of interest between his public duty in relation to that property and
his private interest in purchasing that property and the general law in this regard being that
persons in fiduciary position are not to derive advantage from their position and they
should not place themselves in a position where there would be a conflict of interest in
duty, whether such transaction would result in a loss to public or not.
27. That as per the facts of the case Mr.KunalDev and Mr. Naveen Pal had a share of 10%
each in the Nirmala Devi International Market for Milk Products (ND-IMMP) Private Ltd.67
Both the accused, Mr.KunalDev was Director Agriculture Department and Mr. Naveen Pal
was Secretary Planning and Development of Satya Pradesh at the time.68 They were legally
bound not to do the above mentioned acts as they held positions of members of service and
thus broke rule 14 of The All India Services (conduct) Rules, 1968. That rule 13 also tries to
regulate the said acts of the accused by laying a previous requirement of sanction by the
Government in case of engaging directly and indirectly in any trade or business. The said
provisions of the All India Services (conduct) Rules, 1968 comes under the purview of
legally bound and is clearly law which prohibits a public servant from purchasing or bidding
for certain property. Further these rules regulate the acts of servants and is thus law under the
statute of All India Services Act, 1951 (61 of 1951). The accused under these
rules/regulations were thus legally bound. The acts of the accused of investing in shares
in private business which is likely to embarrass or influence him in the discharge of his
official duties amounts to breaking the All India Services (conduct) Rules, 1968, All India
Services Act, 1951 (61 of 1951) and thus in turn committing the offence enshrined under
Section 169 of the Indian Penal Code.
67
68

Page 16
IV.
THAT THE ACCUSED ARE GUILTY OF OFFENCE OF CRIMINAL

CONSPIRACY PUNISHABLE U/S 120B of INDIAN PENAL CODE
28. The offence of Criminal conspiracy has been defined under Section 120-A69 of Indian
Penal Code of 1860(herein referred to as Penal Code). The provisions in such a situation
do not require that each and every person who is a party to the conspiracy must do some
overt act towards the fulfilment of the object of conspiracy, the essential ingredient being
an agreement between the conspirators to commit the crime and if these requirements and
ingredients are established the act would fall within the trapping of the provisions
contained in Section 120B.70This submission is threefold, firstly, it shows ingredients of
criminal conspiracy are being fulfilled, secondly, the prosecution has proved the chain of
events by circumstantial evidence and thirdly the level of reasonable doubt required to
prove the accused guilty.
a. That the Ingredients of criminal conspiracy are being fulfilled
29. If the ingredients in S.120-A are satisfied, an agreement between two or more persons can
be designated 'criminal conspiracy'. The ingredients of the offence of criminal conspiracy
are: (i) an agreement between two or more persons (ii) the agreement must relate to doing
or causing to be done either an illegal act or an act which is not illegal in itself but is done
by illegal means. The essential ingredient of the offence of criminal conspiracy is the
agreement to commit an offence.71In a case where the agreement is for accomplishment of
an act which by itself constitutes an offence, then in that event no overt act is necessary to
69
When two or more persons agree to do, or cause to be done - (1) an illegal act, or (2) an act which is not
illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement
except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the
agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.- It is immaterial
whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
70
Saju v. State of Kerala, (2001) 1 SCC 378: AIR 2001 SC 175.
71
N.C.T. of Delhi v. Jaspal Singh, (2003) 10 SCC 86.
Page 17

be proved by the prosecution because in such a fact situation criminal conspiracy is
established by proving such an agreement.72
That there was an agreement or understanding between two or more of the
accused persons
30. In Ram NarainPoply v. CBI73, the Apex Court held that to convict the parties for
conspiracy under Section 120B mere proof of agreement between two or more to do an
unlawful act or an act by unlawful means is enough. The factum of 'agreement' is the most
relevant factor constituting the offence. The court must be satisfied that the accused has
entered into an agreement of the nature referred to in S.120A. 74 The essence of criminal
conspiracy is an agreement to do an illegal act. Such an agreement can be proved by direct
evidence as well as by indirect evidence or by both, although direct evidence is rarely
available.75 There is no difference between the mode of proof of the offence of conspiracy
and that of any other offence, it can be established by direct or circumstantial evidence. 76
It can therefore be proved by evidence of surrounding circumstances and the conduct of
accused both before and after the alleged commission of the crime.77
31. The conspiracies are not hatched in open, by their nature, they are secretly planned, they
can be proved even by circumstantial evidence, the lack of direct evidence relating to
conspiracy has no consequence. For an offence punishable under Section 120B,
prosecution need not necessarily prove that the perpetrators expressly agree to do or cause
to be done illegal act, the agreement may be proved by necessary implication.78
72
Suresh Chandra Bahri v. State of Bihar, 1994 CriLJ 3271 (SC): AIR 1994 SC 2420.
AIR 2003 SC 2748: 2003 (1) SCALE 171: (2003) 3 SCC 641.
74
U.NaliniMadhavan v.State Of Kerala, Criminal Revision Petition No.3906 of 2009, decided on 16 September,
2010.
75
Mohd.Khalid v. State of West Bengal, 2002 7 SCC 334.
76
Leonnart v. Director of Enforcement, AIR 1970 SC 549.
77
Neki Ram v. State of Haryana, (1974) 76 Punj.L.R. 780.
78
E.K. Chandrasenan v. State of Kerala, 1995 CriLJ 1445 (SC).
73
Page 18

32. In the instant case, all the three accused are members of Nirmala Devi International
Market for Milk Products (ND-IMMP) Private Ltd.79 which has taken permission to open
a similar project which was being dropped by the accused, even it was an election
manifesto of the Farmer's Party, which was in power.80 Here, all the three accused have
worked jointly to get the land illegally de-notified so that later, on they can purchase it,
which clearly shows the prior meeting of mind or agreement, the land which was illegally
de-notified was purchased by the company in which all the accused are shareholders and
members.
That there was illegal act done by the accused or any act done by illegal means
33. The word illegal is defined in Section 43 of Indian Penal Code aseverything which is an
offence or which is prohibited by law, or which furnishes ground for a civil action; and a
person is said to be "legally bound to do" whatever it is illegal in him to omit.Conspiracy
is generally a matter of inference deduced from certain criminal acts of the parties accused
done in pursuance of an apparent criminal purpose in common between them.81
34. In the instant case, all the three accused worked together and abused their position as
public servant and doing acts which they were not bound to do. They notified the land and
purchased at cheaper process and then by de-notifying the land illegally which was against
public interest buy the same land again as a private company.A newspaper report appeared
in the 'Vigilant Eyes'a daily Newspaper on 16th February 2012 reporting that the accused1 has abused his official position by obtaining undueadvantage to himself. He purchased
the land in village Partap Nagar on the name of her wifes name with knowledge and
information about the proposal of theGovernment to set up an International Market of
Food Products in Village PartapNagar. The company ND-IMMPPvt. Ltd. has accused-1
79

81
KeshabDeoBhagat v. Emperor, AIR 1945 Cal. 93.
80
Page 19

and his wife, son anddaughter as members. The other two members Mr.KunalDev(Herein
referred to as Accused-2) was Director AgricultureDepartment and Mr. Naveen Pal(Herein
referred to as Accused-3) was Secretary Planning and Development of SatyaPradesh. They
have helped Mr.HoshiarRai in getting the government project droppedand got approval to
set up International Market for Milk Food Products as a private company.82 This clearly
depicts that all the accused have done illegal acts done by the accused or any act done by
illegal means.
b. There is sufficient circumstantial evidence to prove guilt of the accused
35. The age old principle as already explained in the landmark judgment of Hanumantv. State
of Madhya Pradesh83was recently reiterated inPawanMandalv. State of Punjab.84 It was
stated that firstly, the circumstances from which the conclusion of guilt is drawn should be
fully established.85Secondly, the facts so established should be consistent only with
hypothesis of the guilt of the accused, that is to say they should not be explainable on any
other hypothesis except accused is guilty.86 Thirdly, the circumstances should be of a
conclusive nature and tendency.87Fourthly, they should exclude every hypothesis except
the one to be proved88 and lastly, there must be a chain of evidence89 so complete as not to
leave any reasonable ground for the conclusion consistent with the innocence of the
accused and must show that in all human probability, the act must have been done by the
accused.90
82

AIR1952 SC 343.
84
2010 (1) RCR (Cri) 274 (P&H) (DB).
85
ShardaBirchandv. State of Maharashtra, AIR 1984 SC1682.
86
PrakashBicholkarv. State, 1981 Cri LJ 440 (Goa).
87
Ram Nandv. Stateof Himachal Pradesh, AIR 1981 SC 738.
88
Gambirv.State of Maharashtra, AIR 1982 S.C 1157.
89
ChandrabhanSrivastav v. State of Madhya Pradesh, 1978 MP.L.J. 340.
90
KusumAnkamaRaov.State of A.P, AIR 2008 SC 2819.
83
Page 20

36. In the case of Deepak C. Patilv. State of Maharashtra,91the Apex Court observed that if
the circumstantial evidence is conclusive, a conviction based solely on circumstantial
evidence may be recorded.92InBhagat Ram v. State of Punjab93itwas laid down that where
the case depends uponthe conclusion drawn from circumstances thecumulative effect of
the circumstances must be suchas to negative the innocence of the accused andbring home
the offences beyond any reasonabledoubt.In a case based on circumstantial evidence,the
settled law is that the circumstances from whichthe conclusion of guilt is drawn should be
fullyproved and such circumstances must be conclusivein nature. Moreover, all the
circumstances should becomplete and there should be no gap left in the chainof evidence.
Further, the proved circumstances mustbe consistent only with the hypothesis of the guilt
ofthe accused and totally inconsistent with hisinnocence.94
37. The conditions precedent in the words of this Court95, before conviction could be based on
circumstantial evidence, must be fully established. They are:(1) the circumstances from
which the conclusion of guilt is to be drawn should be fully established. The
circumstances concerned must or should and not may be established;(2) the facts so
established should be consistent only with the hypothesis of the guilt of the accused, that is
to say, they should not be explainable on any other hypothesis except that the accused is
guilty;(3) the circumstances should be of a conclusive nature and tendency;(4) they should
exclude every possible hypothesis except the one to be proved; and(5) there must be a
chain of evidence so complete as not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must show that in all human probability
the act must have been done by the accused.
91
AIR 2006 SC 1708.

BimalIndwar v. State of Assam, 1982 Cri LJ 1804 (Gau).
93
Bhagat Ram v. State of Punjab,AIR 1954 SC 621.
94
C. Chenga Reddy v. State of A.P., AIR 1996 SC 3390.
95
State of Rajasthan v. Raja Ram, AIR 2003 SC 3601.
92
Page 21

38. The Court must satisfy itself that variouscircumstances in the chain of events have been
establishedclearly and such completed chain of events must be such as torule out a
reasonable likelihood of the innocence of theaccused.96The circumstances from which an
inference as to the guilt of the accused is drawn have to be proved beyond reasonable
doubt and have to be shown to be closely connected with the principal fact sought to be
inferred from those circumstances.97It has been consistently laid down by this Court that
where a case rests on circumstantial evidence, the inference of guilt can be justified only
when all the incriminating facts and circumstances are found to be incompatible with the
innocence of the accused or the guilt of any other person.98
39. In the light of the above principle we proceed to ascertain a chain ofcircumstances so as
not to leave any reasonable ground for theconclusion that the allegations brought against
the respondentare sufficiently proved and established. The circumstances highlighted to
fasten the guilt on the accused are as follows:Theproposal of IFM initiated by the
Agriculture Minister wasapproved by the Cabinet on 23rd June 2010.99 The
recommendation was accordingly mooted by the Ministry of Agriculture and wasaccepted
by the Cabinet of Ministers at its meeting held on 4th October 2010.100 This means that the
accused was well versed with the fact that the government meant to set up the IMF and he
had an active role in doing the same.
40. On a later date of 10th December, 2010 wife of the accused, enteredinto an agreement to
sell land with Mr.Kisan Singh of the village Partap Nagar forthe sale of 52 acres of land
situated in that village @ Rs. 2 Lac per kanal through awritten agreement 101 This land
bought was a part of the land which was recommended by the Department of Agriculture
96
Inspector of Police, Tamil Nadu v. John David, (2011) 5 SCC 509.

Ashok Kumar Chatterjeev.State Of M.P., AIR 1989 SC 1890.
98
State Of Uttar Pradesh v. SukhbasiAndOrs.AIR 1985 SC 1224.
99
100
101
97
Page 22

for setting up IFM. This means that there is more than reasonable doubt against this action
of the wife of the accused who very well knew that IMF was to be set up in the future.
Also it is quite evident that this land was bought by the accused himself through his wifes
name as he was well aware that he himself could not buy it. This fact was further
highlighted in the PIL by the editor of the newspaper Vigilant Eyes which stated that the
accused purchased the land in village Partap Nagar in the name of hiswife Mrs.Nirmala
Devi with knowledge and information about the proposal of theGovernment to set up an
International Market of Food Products (Herein referred to as IMFP) in Village
PartapNagar.102 It is imperative to note here that the High Court felt that there was merit in
the PIL and thus directed the Central Bureau of Investigation(CBI) to probe the matter.103
41. Further it would be erroneous to consider that it was a coincidence that on 14 March
2011,104 the Department of Agriculture made a modified proposal that it intends to confine
the IFM Project to Agriculture products(SP-IMAP) only and proposed todrop the plan to
set up International Market for Milk Food Products. This circumstance clearly lays down
the state of mind of the accused that by making such a recommendation he clearly
intended to bar the government from acting upon in any manner upon the land which he
bought in the name of his wife. The same was accepted by the Cabinet of Ministers and
thus project of the government limited to (SP-IMAP).
42. After this recommendation was accepted by the cabinet, the wife of the accused
incorporated a private company on 20th July 2011 with thename Nirmala Devi
International Market for Milk Products (ND-IMMP) Private Ltd in which the three
accused had majority shares if combined.105The afore mentioned land in village Partap
Nagar purchased by Mrs.Nirmala Devi inher name was transferred to the ND-IMMP Pvt.
102

104
105
103
Page 23

Ltd. @ Rs. 10 lac per kanal on 10September 2011. This was as opposed to the same land
which she bought @ Rs 2 lac per kanal.106 This fact certainly proves that the accused knew
that they were acting in a manner in favour of the companys own pecuniary benefit as
opposed to the benefit which was earlier to be conferred upon the government by setting
up of the same Milk Market. Thus the shareholders playing an important part in the
decision making process of the company certainly came together prior to the setting up of
the Milk Market and agreed to do the same knowing that it caused loss to the government
at the cost of their personal gain. The acts of ND-IMMP Pvt. Ltd. and its shareholders are
such that they are acting through the common knowledge which was first attained by the
Agricultural Minister that the government was aiming at setting up of the Milk Market. By
misusing his authority, firstly being the minister of Agriculture he recommended to
confine the IFM Project to Agriculture products only and proposed todrop the plan to set
up International Market for Milk Food Products and during his tenure as the minister
bought shares in a private company and got permission to set up the same project through
that private company. This clearly indicates the malafide intention and doing of an act
through illegal means to get pecuniary benefit for oneself and conspiring through the
association of being members of a single private company.
c. That the offence is proved beyond reasonable doubt
43. Greatest possible care should be taken by the court in convicting an accused who is
presumed to be innocent till the contrary is clearly established whose burden is always in
the accusatory system on the prosecution but at the same time it is not the doubt of
vacillating mind that has not the moral courage to decide but shelters itself in a vain and
ideal skepticism. It doesnt mean that the evidence must be so strong as to exclude even
106
Page 24

remote possibility that the accused couldnt have committed the offence.107 The abuse of
position by the accused with the manner of illegal and corrupt concludes that there was
criminal misconduct and which was being effectuated by criminal conspiracy.
107
Himachal Pradesh Adm. v. Om Prakash, AIR 1972 SC 975.
Page 25

PRAYER
Therefore, in the light of the issues raised, arguments advanced, reasons given and authorities
cited, it is humbly prayed before the Honble Court to adjudge and declare:
1. To set aside the order of acquittal given by Trial Court.
2. That the said accused are guilty of committing the offence of Criminal Misconduct
punishable u/s 13(2) r/w Section 13(1)(d)(i) & (ii) of the Prevention of Corruption Act
of 1988.
3. That the said accused are guilty of committing the offence of Criminal Conspiracy
punishable u/s 120B of Indian Penal Code and the offence of Public servant
unlawfully buying or bidding for property punishable u/s 169 of Indian Penal Code.
And any other relief that this Honble Court may be pleased to grant in the interest of justice,
equity and good conscience.
And for this act of kindness Your Lordships appellant shall as duty bound ever pray.
Counsel for Appellant
Page XV

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TEAM CODE

APPEAL NO. .OF 2013

IN THE MATTER OF:

CENTRAL BUREAU OF INVESTIGATION.......................................................APPELLANT

HOSHIARRAI AND OTHERS...................................................................................RESPONDENT

ON SUBMISSION TO THE HIGH COURT OF SATYA PRADESH

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT

MOST RESPECTFULLY SUBMITTED

COUNSEL FOR APPELLANT

2nd RGNUL MOOT COURT COMPETITION, 2013

LIST OF ABBREVIATIONS .............................................................................................. IV

THAT THE SANCTION FOR PROSECUTION IS NOT REQUIRED . ....................... 1

II. THAT THE ACCUSED ARE GUILTY ON ACCOUNT OF CRIMINAL

MEMORIAL FOR APPELLANT

2nd RGNUL MOOT COURT COMPETITION, 2013

That the Ingredients of criminal conspiracy are being fulfilled................................ 17

There is sufficient circumstantial evidence to prove guilt of the accused ................. 20

That the offence is proved beyond reasonable doubt ................................................ 24

MEMORIAL FOR APPELLANT

2nd RGNUL MOOT COURT COMPETITION, 2013

A.P. Andhra Pradesh

AIR All India Reporter

PC Act Prevention of Corruption Act

RCR Recent Criminal Reporter

CBI Central Bureau of Investigation

Code Code of Criminal Procedure

SCC Supreme Court Cases

CriLJ Criminal Law Journal

SCR Supreme Court Reporter

FB Full Bench(3 Judges)

SP-IMAP Satya Pradesh International

Market for Agricultural Food Products

IFM International Food Market

M.P.L.J. Madhya Pradesh Law Journal

WWW World Wide Web

MEMORIAL FOR APPELLANT

2nd RGNUL MOOT COURT COMPETITION, 2013

Code of Criminal Procedure, 1973

Indian Evidence Act, 1872

Indian Penal Code, 1860

Prevention of Corruption Act, 1988

BASU, DURGA DAS, CRIMINAL PROCEDURE CODE, 1973 (LexisNexis

CHAKRABORTY,R., LAW OF LAND ACQUISITION AND COMPENSATION

DHAMIJA, DR.ASHOK, PREVENTION OF CORRUPTION ACT (Wadhwa and

GAUR,K.D., THE INDIAN PENAL CODE (Universal Law Publications,New Delhi,

RANCHODDAS,RATANLAL, THAKORE, KESHAVLAL,DHIRAJLAL, THE

MEMORIAL FOR APPELLANT

2nd RGNUL MOOT COURT COMPETITION, 2013

RAO, A S RAMACHANDRA, COMMENTARY ON PREVENTION OF

REDDI, M.R., ANTI-CORRUPTION LAWS AND DEPARTMENTAL ENQUIRIES

SAEED, MANZAR, MALIKS COMMENTARY ON THE PREVENTION OF

SETH & CAPOORS, COMMENTARIEON PREVENTION OF CORRUPTION

SINGH, BHUVNESHWAR & PAWAR, KUNDAN, BENEFIT OF DOUBT (Soni

VIBHUTE, DR.KI, PSA PILLAIS CRIMINAL LAW (LexisNexis

2nd RGNUL MOOT COURT COMPETITION, 2013

MEMORIAL FOR APPELLANT

2nd RGNUL MOOT COURT COMPETITION, 2013

MEMORIAL FOR APPELLANT

2nd RGNUL MOOT COURT COMPETITION, 2013

2nd RGNUL MOOT COURT COMPETITION, 2013

2nd RGNUL MOOT COURT COMPETITION, 2013

MEMORIAL FOR APPELLANT

2nd RGNUL MOOT COURT COMPETITION, 2013

MEMORIAL FOR APPELLANT