PROBLEM 1

B-001

BEFORE THE HON’BLE SUPREME COURT

IN THE MATTER OF:

MR. A ...PETITIONER

V.

UNION OF INDIA ...RESPONDENT

WRIT PETITION (CRL.) NO. XXX /2019

ON SUBMISSION TO THE HON’BLE SUPREME COURT

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA, 1950

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT

COUNSEL ON BEHALF OF RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENT

 TABLE OF CONTENTS

ARGUMENTS ADVANCED...............................................1

1. THE PETITION FILED BY MR. A IS not MAINTAINABLE..................................1

[A] The petitioner has no locus standi to approach this Hon’ble Supreme Court..............1

[B] The petitioner should have exercised alternative remedies..........................................2

2. SECTIONS 29 AND 30 OF THE POCSOA ARE CONSTITUTIONALLY VALID.

................................................................................................................................................3

[A] The provisions do not violate the fundamental rights of the accused.......................... 3

PRAYER.......................................................................6

MEMORIAL ON BEHALF OF THE RESPONDENT

 ARGUMENTS ADVANCED
1. THE PETITION FILED BY MR. A IS NOT MAINTAINABLE.

It is humbly submitted before the Hon’ble Court that the instant matter is not maintainable
before the Hon’ble Supreme Court under Article 32 of the Constitution of India. The
petitioner lacks the essential ingredients to maintain the matter before the Hon’ble Court.

This petition is not maintainable as, firstly, the petitioner has no locus standi to
approach this Hon’ble Supreme Court [A], secondly, the petitioner should have exercised
alternative remedies [B].

[A] The petitioner has no locus standi to approach this Hon’ble Supreme Court
It is humbly submitted that the petitioner has no locus standi to approach the Hon’ble
Supreme Court in the present case. According to the facts of the present case, the Sessions
court had exercised valid jurisdiction under Section 33 of the Protection of Children from
Sexual Offences Act (POCSOA), which provides for taking a cognizance upon receiving
complaints of facts which constitute such offence or upon a police report of such facts. As per
Section 28 of POCSO Act, Special Court is designated from Sessions court itself. Therefore,
Sessions Court has authority to exercise jurisdiction in the present case.

If the instant case involves substantial question of law then there might be chances of
maintainability of the said petition, but, it is not the case as the petitioner has not acted pro
bono publico in challenging the constitutional validity of Sections 29 and 30 of the POCSO
Act, rather acted fancifully for his personal benefits and interest.

The relief granted by Sessions Court is also not beyond its power, as per Section 33(8),
Sessions Court in appropriate cases has power to impose appropriate punishment and also can
direct payment of compensation to such child. In instant case, under Section 6, it was stated
that in terms of aggravated penetrative sexual assault the maximum punishment can go upto
10 years and with fine.

In instant case, the Sessions Court has taken cognizance after rejecting the application of
discharge filed by Mr. A. Subsequently, the authorized court has framed the charged against
the accused. Sessions Court, remaining within its domain of Section 6 of POCSOA, has
imposed punishment of 10 years to Mr. A and fine of Rs. 10,000.

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MEMORIAL ON BEHALF OF THE RESPONDENT
No action lies in the Supreme Court under Art. 32 unless there is an infringement of a
Fundamental Right,1 as the Supreme Court has previously emphasized that “The violation of
Fundamental Right is the sine qua non of the exercise of the right conferred by Art. 32.”2

Furthermore, the statement of the object and the reasons of the Act inter alia provide that
Sessions Court can impose any legal right vis-a-vis to the protection of children. In view of
the aforesaid the order passed by the Sessions Court does not suffer from the infirmity of
excessive jurisdiction or invalid jurisdiction. Hence, the petition is without substance and is
an abuse of the process of law.

[B] The petitioner should have exercised alternative remedies

The existence of alternative remedies is a thing taken into consideration in the matter
governing writ.3 Where statutory remedies are available or where a statutory court has been
set up, a petition under Article 32 is not a proper remedy unless the remedies are ill suited, to
meet the demand of an extraordinary situation, e.g., (i) where private or public law wrong are
so inextricably mixed up and the prevention of public injury and the vindication of public
justice requires that recourse may be had to Article 32; 4 (ii) in cases where the alternative
remedy is not effective or adequate.5

In Union of India v. Verma,6 it was held that it is well settled when an alternative and equally
efficacious remedy is open to a litigant, he should be required to pursue that remedy and not
invoke the special jurisdiction of Supreme Court to issue a prerogative writ and where such
remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition
under Article 32.

Article 32 should not be construed so as to replace ordinary remedies by way of appeal,

revision, review and application available to litigant under the general law of the land. 7
Moreover, Article 32 should not be an alternative method of redress to the normal process of
a decision in an action brought in the usual course established by law. 8 If an aggrieved

1
Andhra Industrial Works v. Chief Controller of Imports, AIR 1974 SC 1539.
2
Fertilizer Corp. Kamgar Union v. Union of India, AIR 1981 SC 344.
3
Rashid Ahmed v. Municipal Board, AIR 1950 SC 163.
4
Shyam Kishore v. Municipal Corporation of Delhi, AIR 1992 SC 2279.
5
Express Newspapers Pvt. Ltd. v. Union of India, AIR 1986 SC 872.
6
AIR 1957 SC 882.
7
Re, Kallumattan Thippaswami, AIR 1952 Mad. 112.
8
Mohan Pandey v. Usha Rani Rajgaria, AIR 1993 SC 1225.
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MEMORIAL ON BEHALF OF THE RESPONDENT
person9 has a right of appeal,10 writ petition will be invariably be rejected 11 or in cases when
there is a provision for making reference on the question of law before the Supreme Court 12
or in cases where other efficacious and effective remedies provided under the Act 13 or in
cases when a remedy for filling a revision application is there.14

Where a statute creates a right or liability and also prescribes a remedy or procedure for the
enforcement of that right or liability, resort must be had to that remedy before invoking the
extraordinary and prerogative writ jurisdiction of the Supreme Court under Article 32. Hence,
where statutory remedies are available or where a statutory court has been set up, a petition
under Article 32 is not generally entertained since Article 32 is not intended to circumvent
statutory procedures.15 Hence, the petitioner should have exercised other remedies before
challenging Sections 29 and 30 of the POCSO Act on the constitutional ground through writ.

2. SECTIONS 29 AND 30 OF THE POCSOA ARE CONSTITUTIONALLY VALID.

Sections 29 and 30 of the POCSO Act are constitutionally valid as these provisions have been
enacted under Article 15(3) of the Constitution of India. To protect the sanctity of the society
by reducing crimes against the child, these provisions are very much valid. Therefore, the
provisions do not violate the fundamental rights of the accused [A].

[A] The provisions do not violate the fundamental rights of the accused.
In applying the provisions of POCSO Act, the fundamental rights of the accused under
Article 14 and 21 of the Constitution of India are not violated. The presumption of innocence
is the basic principle of criminal jurisprudence which is not hampered by these provisions as
the presumption under POCSO Act would come into play only when the prosecution is able
to bring on record facts that would form the foundation for the presumption. The courts must
be on guard to see that the application of the presumption, without adverting to essential
facts, shall not lead to any injustice. The presumption under Section 29 of the Act is not
absolute. The statutory presumption would get activated or triggered only if the prosecution
proves the essential basic facts. If the accused is able to create serious doubt on the veracity
of the prosecution case or the accused brings on record materials which would render the

9
Gomeshdas v. State of U.P., AIR 1952 All 992.
10
Sadhana Lodh v. National Insurance Co., AIR 2003 SC 1561.
11
Titaghur Paper Mills Co. Ltd. v. State of Orissa, AIR 1983 SC 603.
12
All India Lawyers Forum for Civil Liberties v. UOI, AIR 2001 Del. 380.
13
Sri Ramdas Motor Transport Ltd. v. Tadi Adhinarayana Reddy, AIR 1997 SC 2189.
14
State of HP v. Prithvi Chand, AIR 1996 SC 977.
15
Asst. Collector of Central Excise v. Dunlop India Ltd., AIR 1985 SC 330.
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MEMORIAL ON BEHALF OF THE RESPONDENT
prosecution version highly improbable, the presumption would get weakened."16 Also, in the
case of State of U.P. v. Naresh and Ors.,17 it was held that every accused is assumed to be
innocent unless his guilt is proved. The presumption of innocence is a human right subject to
the statutory exceptions. The said principle forms the basis of criminal jurisprudence in
India.”

Furthermore, the provisions are neither arbitrary nor unreasonable. As per the case of
Maneka Gandhi v. Union of India,18 it was stated that procedure established by law as
mentioned under Article 21 must answer the requirement of Article 14 as well. As, there
exists a nexus between Article 14 and Article 21.

Therefore, Sections 29 and 30 must be tested under Article 14 as well. Firstly, both these
sections are not arbitrary in nature because as per the case of Rajasthan State Board
Transport Corportaion v. Bal Mukund Bairwa,19 when there exists non-compliance with the
rules of natural justice then the question of arbitrariness arose. In instant case, both sections
29 and 30 are not violating any principle of natural justice. As, there exists no denial of
presumption of innocence mentioned under Article 11(1) of Universal Declaration of Human
Rights. Furthermore, there exists no denial of accused right to equality as it was made by
taking into consideration both intelligible differentia and reasonable classification.

Where it was stated Right to Equality under Article 14 remain intact when two conditions are
fulfilled, firstly, that the classification must be founded on an intelligible differentia and
secondly, there exists a nexus between the object and the act. 20 In instant case, the questions
which have been arose is for the welfare legislation i.e. safeguarding children from sexual
offences and therefore differentiation between the accused for the violation of general laws
and for the violation of laws, safeguarding children must possess intelligible differentia.
Secondly, there exists reasonable classification, the object sought to be achieved is the
welfare of children and the act, presumption taken under Sections 29 and 30 was taken in
order to ensure that person guilty of heinous sexual crimes against children doesn’t get away
from the clutches of law.

16
Joy V.S v. State of Kerala, B.A No. 8741 of 2018.
17
2017 (8) SCALE 324.
18
AIR 1978 SC 597.
19
(2009) 4 SCC 299.
20
UOI v. NS Rathnam and Sons (2015) 10 SCC 681.
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MEMORIAL ON BEHALF OF THE RESPONDENT
As mentioned in the case of Hardeep Singh v. State of Punjab 21, the Constitutional mandate
under Articles 20 and 21 of the Constitution of India, 1950 provides a protective umbrella for
the smooth administration of justice making adequate provisions to ensure a fair and
efficacious trial so that the accused does not get prejudiced after the law has been put into
motion to try him for the offence but at the same time also gives equal protection to victims
and to the society at large to ensure that the guilty does not get away from the clutches of law.
For the empowerment of the courts to ensure that the criminal administration of justice works
properly, the law was appropriately codified and modified by the legislature under the Cr.P.C
indicating as to how the courts should proceed in order to ultimately find out the truth so that
an innocent does not get punished but at the same time, the guilty are brought to book under
the law.  

In the case of The State of Bombay v. F. N. Balsara22, the Court held the following:

1. The presumption is always in favour of the constitutionality of an enactment, since it must

be assumed that the legislature understands and correctly appreciates the needs of its own
people that its laws are directed to problems made manifest by experience and its
discriminations are based on adequate grounds (presumption of constitutionality).

2. The presumption may be rebutted in certain cases by showing sthat on the face of the
statute, there is no classification at all and no difference peculiar to any individual or class
and not applicable to any other individual or class and yet the law hits only a particular
individual.

3. The principle of equality does not mean that every law must have universal application for
all persons who are not by nature, attainment or circumstances in the same position, and the
varying needs of different classes of persons often require separate treatment.

4. The principle does not take away from the State the power of classifying persons for
legitimate purposes.

5. Every classification is in some degree likely to produce some inequality, and mere
production of inequality is not enough.

6. While reasonable classification is permissible such classification must be based upon some
real and substantial distinction bearing a reasonable and just relation to the object sought to

21
(2014) 3 SCC 92.
22
AIR 1951 SC 318.
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MEMORIAL ON BEHALF OF THE RESPONDENT
be attained, and the classification cannot be made arbitrarily and without any substantial
basis.

Therefore, it is submitted before this Hon’ble Court that Sections 29 and 30 of the POCSO
Act does not violate any fundamental rights of the petitioner and hence are constitutionally
valid.

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

1. That the writ petition is not maintainable under Article 32 of the Constitution of
India, 1950.

2. That Sections 29 and 30 of the POCSOA are constitutionally valid as it does not
violate the fundamental rights of the petitioner.

And pass any such order, writ or direction as the Hon’ble Court may deem fit in the
interest of justice, equity and good conscience.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

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MEMORIAL ON BEHALF OF THE RESPONDENT
 COUNSEL FOR THE RESPONDENT

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MEMORIAL ON BEHALF OF THE RESPONDENT