1TABLE OF CONTENTS SL. No. DELINEATIONS PAGE 1. INDEX OF AUTHORITIES 2 2. STATEMENT OF JURISDICTION 3 3. STATEMENT OF FACTS 4 4. STATEMENT OF ISSUES 5 5. SUMMARY OF ARGUMENTS 6 6. ARGUMENTS ADVANCED 7 7. PRAYER 11 Gaurav Singh Ghurayya Roll NO. 177041, Section – A First Year Versus Versus Hon’ble Honorable Honorable Gaurav Singh Ghurayya Roll NO. State of Rajasthan vs. Vidhyawati AIR 1962 SC 933. 177041.. 2000 2. 2014. on 13 March. Railway Board & Ors vs Mrs. AIR 1971 SC 337 = 1971 (1) SCR 637 = (1971) 3 SCC 104 3. Bodhisatwa vs. AIR 1984 SC 802 = 1984 (2) SCR 67 = (1984) 3 SCC 4. 2 INDEX OF AUTHORITIES CASES 1. Chairman. Andhra Pradesh CrPC Criminal Procedure Code HC High Court Ld. 6. State of J & K. Smt. THE CONSTITUTION OF INDIA 2. 2015 ABBREVIATIONS ABBREVIATION ACTUAL TERM ACTUAL TERM & And A. Subdhra Chakroborty (1996) 1 SCC 490 5. Gujarat vs. Memon Mahomed Haji Hasan AIR 1967 SC 1885 7.I. Ms.O. Anwar vs. THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) BILL. State through Reference vs Ram Singh & Ors. Bandhua Mukti Morcha vs. Basava Kom Dyamogouda Patil vs. Learned GUJ Gujrat SC Supreme Court Supreme Court SCC Supreme Court Cases Supreme Court Cases u/s Under Section(s) Under Section(s) Vs. Chandrima Das & Ors. Mst. State of Mysore AIR 1977 SC 1749 8. U.P. Delhi High Court Statutes 1. Section – A First Year . Section – A First Year . is read herein under as: Article 136 of the Constitution of India. determination. sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. (2) nothing in clause (1) shall apply to any judgment. in its discretion. Leave has been granted by this Hon’ble Court and the matter has now been listed for arguments. The provision under which the appellant has approached this Hon’ble Court and to which the respondent humbly submits. determination. 3 STATEMENT OF JURISDICTION The appellants have approached the Hon’ble Supreme Court of India under Article 136 of the Constitution of India. 1950: “(1) notwithstanding anything in this chapter. 177041. grant special leave to appeal from any judgment. decree. the supreme court may. sentence or order passed or made by any court or tribunal constituted by or under any law relating to the armed forces.” Gaurav Singh Ghurayya Roll NO. Police Station Jorabagan. 177041. 2016 and stayed at a hotel at 10. Awdesh Singh bolted the room from outside and stood on guard outside the room. With that intent in mind.00 Hours for paying a visit to Ajmer Sharif She had. Thereafter Siyaram accompanied by Ram Samiram Sharma. Sudder Street. She arrived at Howrah Railway Station on 01st January. The room was booked in the name of Ashoke Singh against Railway Card pass No. All the five persons who were present inside the room brutally violated. Seeing her plight Siya Ram Singh pretended to be her saviour and also abused and slapped Ashoke Singh.00 hours she went to a nearby eating house with Kashi and had her meal there.102 two other persons viz. Soon after she had taken her meal. a tout who posed himself as a very influential person of the Railway and Siya Ram Singh a railway ticket broker having good acquaintance with some of the Railway Staff of Howrah Station) approached her. she arrived at Calcutta on 24th December." Gaurav Singh Ghurayya Roll NO. she vomited and came back to the Ladies waiting room.102 on the first floor of Yatri Niwas. a citizen of Bangladesh came to India on official duty in the month of December 2016 before returning to Bangladesh. 2017 two unknown persons (later identified as one Ashoke Singh. 3638 since 30th December 2016. Section – A First Year . she was rescued by Jorabagan Police. Heena Ibraham .17) of Jodhpur Express. In room No. Police Station Taltola. At about 21. When she could recover she managed to escape from the room of Yatri Niwas and came back to the platform where again she met Siya Ram Singh and found him talking to Ashoke Singh. one Lalan Singh. it is said.00 hours on 01st January. The Train Ticket Examiner asked her to wait in the Ladies Waiting room. The Sunil Sharma (Age 16 yrs.00 hours Siya Ram Singh came again to her with a boy named Kashi and told her to accompany the boy to a restaurant if she wanted to have food for the night. She was taken to room No. He assured her to help entrain Poorva Express on the following morning. a khalasi of electric Department of Howrah Station joined them on way to Yatri Niwas. On being informed by the landlord of the building following the hue and cry raised by Heena Ibraham . There Siyaram raped Heena and when she protested and resisted violently Siyaram and Ram Samiran Sharma gagged her mouth and nostrils intending to kill her as a result Heena bled profusely. Pathuriaghata Street. Accordingly at about 21. Siya Ram requested Heena Khatoon to accompany him to his residence to rest for the night with his wife and children. boy helper in railway on contract basis) took liquor inside the room and also forcibly compelled her to consume liquor. however. a friend of Siyaram took her to the rented flat of Ram Samiram Sharma at 66.00 hours to avail Jodhpur Express at 23. 2017 at about 14. She accordingly came to the ladies waiting room and rested there at about 17. 4 STATEMENT OF FACT Heena Ibraham. At about 20. Calcutta.00 hours Ashoke Singh along with Rafi Ahmed a Parcel Supervisor at Howrah Station came to the Ladies Niwas before boarding the train.S-3 (Berth No. Sitaram Singh. Heena Ibraham suspected something amiss when Ashoke Singh forced her into the room. was in a state of shock and daze. Parcel Clearing Agent were waiting. She appeared to have some doubt initially but on being certified by the lady attendants engaged on duty at the Ladies Waiting Room about their credentials she accompanied them to Yatri Niwas. took her ticket and returned the same after confirming reservation in Coach No. a wait listed ticket and so she approached a Train Ticket Examiner at the Station for confirmation of berth against her ticket. Parcel Clerk of Howrah Railway Station and Awdesh Singh. Since it was well past midnight and Jodhpur Express had already departed. she wanted to visit Ajmer sharif. the Railways. It is also contended that commission of the offence by the person concerned would not make the Railway or the Union of India liable to pay compensation to the victim of the offence. Whether the commission of an offence like rape by the person concerned. STATEMENT OF ISSUES 1. was concerned or connected with the victim. Section – A First Year . at the instance of a practicing advocate who. for that matter. Heena Ibraham who was a foreigner and was not an Indian national. or. 177041. the Union of India would not even be vicariously liable. APPEAL TO THE HON’BLE SUPREME COURT Being aggrieved by the said judgment of the High Court that had awarded a sum of Rs. they alone would be prosecuted and on being found guilty would be punished and may also be liable to pay fine or compensation. would make the railway or the Union of India liable to pay compensation to the victim of the offence on the ground of vicarious liability? 3. that too. no compensation could have been legally awarded by the High Court in a proceeding under Article 226 of the Constitution and. Heena Ibraham .10 lacs as compensation for Smt. Whether the accused Sunil Sharma (Age-16 yr. It is also contended that for claiming damages for the offence perpetrated on Smt. Whether Heena Ibraham who is a foreigner and not an Indian citizen is entitled to any relief/ compensation under constitution of India? 2. the remedy lay in the domain of Private Law and not under Public Law and. Heena Ibraham . Heena Ibraham as the High Court was of the opinion that the rape was committed at the building (Rail Yatri Niwas) belonging to the Railways and was perpetrated by the Railway employees. Railway Board filed an appeal before the Hon’ble Supreme Court on the ground that Railways would not be liable to pay compensation to Smt. Boy) can be treated as an adult for the offence of Gang Rape? Gaurav Singh Ghurayya Roll NO. It is contended that since it was the individual act of those persons. therefore. in no way.10 lacs as compensation for Smt. but having regard to the facts of this case. The Chairman. 5 DECISION TAKEN BY HON’BLE HIGH COURT It was on the basis of the above facts that the High Court had awarded a sum of Rs. can. be held vicariously liable in damages to the person wronged by those employees.. the State was under the Constitutional liability to pay compensation to her. Whether the accused Sunil Sharma (Age-16 yr. As a national of another country. Boy) can be treated as an adult for the offence of Gang Rape? It is humbly submitted before this Hon’ble Court that juvenile in conflict with law named as Sunil Sharma (Age. She was entitled to be treated with dignity and was also entitled to the protection of her person as guaranteed under Article 21 of the Constitution. are essential components of the Govt. 6 SUMMARY OF ARGUMENT 1. 2015 and we request an order transfer of the trial of the case to the Children’s Court having jurisdiction to try such offences from juvenile justice board. Section – A First Year . Whether the commission of an offence like rape by the person concerned. of which they are the employees. 2. The Right available to her under Article 21 was thus violated. 1973 according to the JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) BILL.) can be treated as an adult for the offence of gang rape for as per the provisions of the Code of Criminal Procedure. machinery which carries on the commercial activity. the Union Govt.16 yr. Whether Heena Ibraham who is a foreigner and not an Indian citizen is entitled to any relief/ compensation under constitution of India? It is humbly submitted before this Hon’ble Court that the Heena Ibraham . Consequently. Establishing Yatri Niwas at various Railway Stations to provide lodging and boarding facilities to passengers on payment of charges is a part of the commercial activity of the Union of India and this activity cannot be equated with the exercise of Sovereign power. would make the railway or the Union of India liable to pay compensation to the victim of the offence on the ground of vicarious liability? It is humbly submitted before this Hon’ble Court that Running of Railways is a commercial activity. The employees of the Union of India who are deputed to run the Railways and to manage the establishment. employees who outraged her modesty. 3. Gaurav Singh Ghurayya Roll NO. including the Railway Stations and Yatri Niwas. who was not the citizen of this country but came here as a citizen of Bangladesh was. If any of such employees commits an act of tort. entitled to all the constitutional rights available to a citizen so far as "Right to Life" was concerned. she could not be subjected to a treatment which was below dignity nor could she be subjected to physical violence at the hands of Govt. nevertheless. 177041. U. it will be available not only to every citizen of this country. Hence. Whether Heena Ibraham who is a foreigner and not an Indian citizen is entitled to any relief/ compensation under constitution of India? It is most humbly submitted before this Hon’ble Court that the Mrs. Heena Ibrahim though is not a citizen of India but of Bangladesh she is entitled to the relief/ Compensation under constitution of India. 1992 supp 2 SCR 454.citizen" both. State of J & K.” In The Chairman. we can draw a conclusion that Mrs. Railway Board & Ors vs Mrs. Article 21 of constitution:. II. A corporation. Hon’able court has remarked that “the right to equality is also recognized as one of basic features of Indian constitution. Article 14 applies to all person and is not limited to citizens. Heena Ibraham is as much qualified to the equal treatment from Law as the Railway board and her status ad citizen of Bangladesh is not a bar to it. Also in Anwar vs.” Thus. According to the tenor of the language used in Article 21. The contention laid by appellant in his appeal lacks mainly on the context that it does not realise that the words person and citizen both are used in Fundamental Rights as part of Constitution of India and hence. 2000 it has been held by the Hon'ble Supreme Court that “The meaning of the word "life" cannot be narrowed down. I..Article 14. 177041. is also entailed to the benefit of this article.O. In the landmark judgement in the case of Bandhua Mukti Morcha vs. Section – A First Year . 21 and 22 are available not only to "citizens" but also to "persons" which would include "non- citizens". Chandrima Das & Ors. This concept implied equality for equals and aims at striking down hostile discrimination or oppression of inequality. AIR 1984 SC 802 = 1984 (2) SCR 67 = (1984) 3 SCC Hon'ble Supreme Court that It is the Gaurav Singh Ghurayya Roll NO. AIR 1971 SC 337 = 1971 (1) SCR 637 = (1971) 3 SCC 104. 7 ARGUMENTS ADVANCED 1. it was held that “the rights under Articles 20. Article 14 of constitution : . which is a juristic person.” Thus this proves the validity of statement that Mrs. guarantees equality before law or the equal protection of laws within the territory of India. Heena Ibrahim though is not a citizen of india but of Bangladesh she is entitled to the relief/ Compensation under constitution of India Under article 14 and 21 which are extended to “persons” and not just “citizens of India”. with this few Fundamental rights are also available to the non- citizens which assures them a safe environment when visiting India. In the case of Indra Sawhney etc vs union of India and others air 1993 SC 477.I.Article 21 (Protection Of Life And Personal Liberty) says “No person shall be deprived of his life or personal liberty except according to procedure established by law. This judgement clarifies all the doubts that person mentioned in the Article 14 is not limited to the term citizens but includes others as well even a commercial entity such as corporation and its main aim is in striking down hostile discrimination or oppression of inequality as suggest by the appeal of my learned friend on the other side of the argument. is applicable to "person" which would also include the "citizen" of the country and "non. but also to a "person" who may not be a citizen of the country. Memon Mahomed Haji Hasan AIR 1967 SC 1885 and Smt. Heena Ibraham compensation under Constitution of India. Ms. to live with human dignity. Vidhyawati AIR 1962 SC 933. Unlike Crown Proceedings Act. It may be pointed out that functions of the Govt. would make the railway or the Union of India liable to pay compensation to the victim of the offence on the ground of vicarious liability? It is most humbly submitted before this Hon’ble Court that vicarious liability refers to a situation where someone is held responsible for the actions or omissions of another person. Further Hon’able Supreme Court in Bodhisatwa vs. Socialisation of Compensation. Gaurav Singh Ghurayya Roll NO. free from exploitation. Reference may also be made to the decisions of this Court in State of Gujarat vs. all of which cannot be said to be the activities relating to exercise of Sovereign powers. education. right to life which includes right to live with human dignity contained in Article 21. Basava Kom Dyamogouda Patil vs. The Court observed as under: "Rape is a crime not only against the person of a woman. for example. the precedent for the vicarious liability of the state has been set through various decisions of the hon’able courts. will be vicariously liable for the tortious act of its employees. social. political and even marital. The functions of the State not only relate to the defense of the country or the administration of justice. it is a crime against the entire society. Section – A First Year . State of Mysore AIR 1977 SC 1749. in a welfare State are manifold. 8 fundamental right of every one in this country. entitling Mrs. 1947(England).” Hence. economic. This was a case where a claim for damages was made by the heirs of a person who died in an accident caused by the negligence of the driver of a Govt. but they extend to many other spheres as. Rape is therefore the most hated crime. we do not have any statutory provisions mentioning the liability of the State in India. commercial. The liability of the government in tort is governed by the principles of public law inherited from British Common law and the provisions of the Constitution. 2. These activities cannot be said to be related to Sovereign power. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. 177041. It is a crime against basic human rights and is violative of the victims most cherished right. The whole idea of Vicariously Liability of the State for the torts committed by its servants is based on three principles: Respondeat superior (let the principal be liable). Subdhra Chakroborty (1996) 1 SCC 490 has held "rape" as an offence which is violative of the Fundamental Right of a person guaranteed under Article 21 of the Constitution. In State of Rajasthan vs. Hence. Quifacit per alium facit per se (he who acts through another does it himself). namely. Whether the commission of an offence like rape by the person concerned. vehicle. through above discussed judgements Hon’able Supreme Court has already set a precedence where non citizens will also have fundamental right to life and rape will amount to its violation. Mst. it was held that the Govt. ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence. the Union Govt. Thus. Delhi High Court had also referred the case of one convict who was 17 year old at the time of commencement of the crime was as per law tried by juvenile justice board and not the high court. in the light of the above mentioned argument and decisions of the Hon’able Supreme Court we may conclude that the commission of an offence like rape by the person concerned does make the railway or the Union of India liable to pay compensation to the victim of the offence on the ground of vicarious liability. Boy) can be treated as an adult for the offence of Gang Rape? It is most humbly submitted before this Hon’ble Court that THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) BILL. 15. who has completed or is above the age of sixteen years. be held vicariously liable in damages to the person wronged by those employees. this at that time there was no such provision of trial by children court which came later through amended act of Juvenile Justice mentioned above. then the Board may order transfer of the trial of the case to the Children’s Court having jurisdiction to try such offences. 177041. Establishing Yatri Niwas at various Railway Stations to provide lodging and boarding facilities to passengers on payment of charges is a part of the commercial activity of the Union of India and this activity cannot be equated with the exercise of Sovereign power. on 13 March. the Board may take the assistance of experienced psychologists or psycho-social workers or other experts. can. Explanation. Further same Act in its section 18 (3) also says Where the Board after preliminary assessment under section 15 pass an order that there is a need for trial of the said child as an adult. 9 Running of Railways is a commercial activity. Whether the accused Sunil Sharma (Age-16 yr. it is clarified that preliminary assessment is not a trial. the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence. subject tom other legal requirements being satisfied. If any of such employees commits an act of tort. 2015 under section 15 says. and may pass an order in accordance with the provisions of subsection (3) of section 18: Provided that for such an assessment.. In light of the above produced section it is submitted that a board of enquiry may be constituted under THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) BILL. but is to assess the capacity of such child to commit and understand the consequences of the alleged offence. (1) In case of a heinous offence alleged to have been committed by a child. Section – A First Year . of which they are the employees.—For the purposes of this section. machinery which carries on the commercial activity. including the Railway Stations and Yatri Niwas. However. 2015 which Gaurav Singh Ghurayya Roll NO. The employees of the Union of India who are deputed to run the Railways and to manage the establishment. Prior to the commencing of the Act in the landmark case of State through Reference vs Ram Singh & Ors. are essential components of the Govt. 2014. 10 may check the suitability of the Juvenile in conflict with law hereby mentioned as Sunil Sharma to be tried as adult or not. Section – A First Year . Gaurav Singh Ghurayya Roll NO. 177041. and further it is requested an order transfer of the trial of the case to the Children’s Court having jurisdiction to try such offences from juvenile justice board may be made as per the recommendation of the board of inquiry. the appellant as in duty bound shall humbly pray. 11 PRAYER Wherefore in the light of the facts stated. And for this. Smt. Equity and Good Conscience. it is most humbly prayed before this Hon’ble Court that it may be pleased to:- 1. authorities cited and arguments advanced. Section – A First Year . (Counsel for the Chanda Bose & ORS. 177041. issues raised.) Gaurav Singh Ghurayya Roll NO.)under JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) BILL. 3. AND Pass any other order that it may deem fit in the interest of Justice. The payment to the High Commissioner shall be made within three months to lessen the ordeal she is facing for past few months. Heena Ibraham .16 yr. The appeal having no merit may be dismissed with the observation that the amount of compensation shall be made over to the High Commissioner for Bangladesh in India for payment to the victim. 2015 for his treatment as an adult for the offence of gang rape for as per the provisions of the Code of Criminal Procedure. 2. A board of inquiry may be constituted at earliest to try the case of Sunil Sharma (Age.