Best Memorial RESPONDENT 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
HOSHIAR RAI AND OTHERS...................................................................................RESPONDENT
ON SUBMISSION TO THE HIGH COURT OF SATYA PRADESH
WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT
MOST RESPECTFULLY SUBMITTED
COUNSEL FOR RESPONDENT
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 APPEAL AGAINST ACQUITTAL IS NOT MAINTAINABLE ................. XIII
THAT THE SANCTION FOR PROSECUTION IS REQUIRED .................................... XIII
THAT THE ACCUSED ARE NOT GUILTY OF CRIMINAL MISCONDUCT UNDER
THE PREVENTION OF CORRUPTION ACT, 1988 ...................................................... XIII
THAT THE ACCUSED ARE NOT GUILTY UNDER SECTION 120B OF INDIAN
PENAL CODE .................................................................................................................. XIV
THAT THE ACCUSED ARE NOT GUILTY UNDER SECTION 169 OF INDIAN
PENAL
CODE...XIV
ARGUMENTS ADVANCED .................................................................................................. 1
I.
THAT THE APPEAL AGAINST ACQUITTAL IS NOT MAINTANABLE ................ 1

a.
That the Trial court rightly acquitted the accused ...................................................... 1
MEMORIAL FOR RESPONDENT
Page II

b.
That the presumption of Innocence is strengthened by the acquittal .......................... 4
c.
That the Burden of Proof is on the Appellant/Prosecution ......................................... 5
II. THAT THE SANCTION FOR PROSECUTION IS REQUIRED .................................. 6

a.
That Section 19 of PC Act and Section 197 of the Code act in different spheres ....... 9
III. THAT THE ACCUSED ARE NOT GUILTY FOR THE OFFENCE OF CRIMINAL
MISCONDUCT UNDER THE PREVENTION OF CORRUPTION ACT OF 1988 ........... 10
a.
That the ingredients under Section 13(1)(d)(i) are not fulfilled ............................... 12
b.
That the offence under Section 13(1)(d)(ii) is not defined ........................................ 16
IV. THAT THE ACCUSED ARE NOT GUILTY U/S 120B OF INDIAN PENAL CODE 18
a.
That the ingredients of offence are not fulfilled - ...................................................... 18
b.
That there is lack of evidence .................................................................................... 22
V. THAT THE ACCUSED ARE NOT GUILTY UNDER SECTION 169 OF INDIAN
PENAL CODE ..................................................................................................................... 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, COMMENTARY ON 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. Subair v. State of Kerala,(2009) 6 SCC 587. -----------------------------------------------------13
Allarakha K. Mansuri v. State of Gujurat, (2002) 3 SCC 57 ------------------------------------ 1, 2
Amritalal Hazara v. Emperor, AIR 1916 Cal. 188 --------------------------------------------------20
Ashok Kumar Chatterjee v. State of M.P., AIR 1989 SC 1890. -----------------------------------23
Bakhshish Singh Brar v. Gurmej Kaur, AIR 1988 SC 257: (1987) 4 SCC 663. ----------------- 6
Baldev Singh v. State of Punjab, (2009) 6 SCC 564. -----------------------------------------------19
C.K. Jaffer Shariefv.State (Through CBI),2012 (11) SCALE 71: (2013) 1 SCC 205 ----- 11, 14
Page VI

C.M. Girish Babuv.CBI, Cochin, High Court of Kerala,AIR 2009 SC 2022 -------------------12
Chandrappa v. State of Karnataka, (2007) 4 SCC415 ------------------------------------------- 4, 5
Damodar v. State of Rajasthan, AIR 2003 SC 4414 ------------------------------------------------20
Devender Pal Singh v State (NCT of Delhi) &Anr, (2002) 5 SCC 234: AIR 2002 SC 1661 -19
Ghurey Lal v. State of U.P., (2008) 10 SCC 450 ----------------------------------------------------- 3
Jaswant Singh v. State of Haryana, (2000) 4 SCC 484 ---------------------------------------------23
K.Kalimuthu v. State by D.S.P., AIR 2005 SC 2257: (2005) 4 SCC 512 ------------------------- 7
K.R . Purushothaman v. State of Kerala,2005 (8) SCALE 618: (2005) 12 SCC 631: 2005
CriLJ 4648 (SC): AIR 2006 SC 35 -----------------------------------------------------------------14
Kallu v. State of M.P., (2006) 10 SCC 313: AIR 2006 SC 831 ------------------------------------ 2
Kanwarjit Singh Kakkar v. State of Punjab and Anr.,2011 (5) SCALE 37: (2011) 13 SCC
158. ------------------------------------------------------------------------------------------------------11
Kartongen Kemi O.C.H. Forvaltining A.B. v. State through C.B.I, 2004 (1) JCC 218 --------20
M.W. Mohiudin v. State of Maharashtra, 1995 SCC (Cri.) 546 -----------------------------------14
Major S.K. Kale v. State of Maharashtra -------------------------------------------------------------- 5
Mookkiah & Anr. v. State, represented by the Inspector of Police, Tamil Nadu, Criminal
Appeal No. 2085 of 2008, Judgment delivered on 4th Jan, 2013.-------------------------------- 5
N.C.T. of Delhi v. Jaspal Singh, (2003) 10 SCC 86 -------------------------------------------------18
Om Prakash and ors. v. State of Jharkhand through the Secretary , Department of Home ,
Ranchi- 1 and Anr.,2012 (9) SCALE 291 (FB). --------------------------------------------------- 9
P.K. Pardhan v. State of Sikkim, AIR 2001 SC 2547: (2001) 6 SCC 704:
MANU/SC/0380/2001. -------------------------------------------------------------------------------- 9
Parkash Singh Badal and Anr. v. State of Punjab and Ors.,AIR 2007 SC 1274: 2006 (13)
SCALE 54: (2007) 1 SCC 1. -------------------------------------------------------------------------- 8
R Sai Bharathi v. J. Jayalalitha, 2004 Cri LJ 286 307 (SC). --------------------------------------25
Page VII

R. Balakrishna Pillai v. State of Kerala, (2003) 9 SCC 700 ---------------------------------- 12, 13
R. Venkatakrishnan v. CBI, (2009) 11 SCC 737 -----------------------------------------------------20
Ramanand Yadav v. Prabhinath Jha, AIR 2004 SC 1053 ------------------------------------------ 2
Ramesh Babulal Doshi v. State Of Gujarat, AIR 1996 SC 2035 ---------------------------------- 3
Ramesh BabulalDoshi v. State of Gujarat, (1996) 9 SCC 225 ------------------------------------23
Romesh Lal Jain v. Naginder Singh Rana and Ors.,AIR 2006 SC 336: 2005 (8) SCALE 810 9
Romesh Lal Jain v. Naginder Singh Rana, (2006) 1 SCC 294 at p. 303: AIR 2006 SC 336--10
S.B. Saha v. M.S. Kochar, AIR 1979 SC 1841: (1979) 4 SCC 177: 1979 SCC (Cri) 939 ------ 7
Sankaran Moitra v. Sadhan Das, AIR 2006 SC 1599 ----------------------------------------------- 6
Sankaran Moitra v. Sadhan Das, AIR 2006 SC 1599: (2006) 4 SCC 584.(FB) ----------------- 7
ShivajiSahabraoBobade v. State of Maharashtra, (1973) 2 SCC 793 ---------------------------23
State (NCT of Delhi) v. Navjot Sandhu @ Afzal Guru ----------------------------------------------22
State of Himachal Pradesh v. M.P. Gupta,2003 (10) SCALE 522: (2004) 2 SCC 349--------- 8
State of Maharashtra v. IshwarSambhaji Babar, 2004 Cri LJ 438 (Bom). ----------------------- 4
State of Maharashtra v. SomNath Thapa, AIR 1996 SC 1744 ------------------------------------21
State of Tamil Nadu v Nalini, AIR 1999 SC 2640---------------------------------------------------18
State of U.P. v. Satish, (2005) 3 SCC 114 ------------------------------------------------------------23
Subramanian Swamy v. A. Raja,AIR 2012 SC 3336: 2012 (7) SCALE 520, (2012) 9 SCC 257
------------------------------------------------------------------------------------------------------------12
Syed Ahmed v. State of Karnataka,AIR 2012 SC 3359 ---------------------------------------------12
Tarlochan Dev Sharmav.State of Punjab & Ors.,AIR 2001 SC 2524 ----------------------------16
Vidadala Harinadhababu v. N.T. Ramarao, AIR 1990 A.P. 20. ----------------------------------25
Vijayan alias Rajan &Anr v. State of Kerala --------------------------------------------------------22
Page VIII

STATEMENT OF JURISDICTION
The Respondent has submittedto the Honble High Court under Section 378 of Code of
Criminal Procedure of 1973.
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 Planning and 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 different sources 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 Satya Pradesh was 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 APPEAL AGAINST ACQUITTAL IS MAINTANABLE
ISSUE II
WHETHER OR NOT SANCTION FOR PROSECUTION IS REQUIRED
ISSUE III
WHETHER
OR
NOT
THE
ACCUSED
ARE
GUILTY
FOR
CRIMINAL
MISCONDUCT UNDER THE PREVENTION OF CORRUPTION ACT OF 1988
ISSUE IV
WHETHER OR NOT THE ACCUSED ARE GUILTY UNDER SECTION 120B of
INDIAN PENAL CODE OF 1860
ISSUE V
WHETHER OR NOT THE ACCUSED ARE GUILTY UNDER SECTION 169 OF
INDIAN PENAL CODE OF 1860
Page XII

SUMMARY OF ARGUMENTS
THAT THE APPEAL AGAINST ACQUITTAL IS NOT MAINTAINABLE

It is submitted that in the light of the facts and settled law, the appeal against acquittal is not
maintainable. Firstly, the trial court was right in acquittal of all the accused. The Apex Court
has held that if the main grounds on which the Court below has based its order acquitting the
accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or
demolished, the High Court should not disturb the acquittal. Therefore, the case is not
maintainable, Secondly, since all the accused have been acquitted by trial court, the
presumption of innocence is strengthened by the decision of trial court and lastly, the burden
of proof in this case is on the prosecution to prove that the accused are guilty of the said
offence.
THAT THE SANCTION FOR PROSECUTION IS REQUIRED
That the sine qua non for the applicability of Section 197(1), Code is that the offence
charged, be it one of commission or omission must be one which has been committed by the
public servant either in his official capacity or under colour of the office held by him. It is a
condition precedent. If in doing his official duty, he acted in excess of his duty, but there is a
reasonable connection between the act and the performance of the official duty, the excess
will not be a sufficient ground to deprive the public servant from the protection.
THAT THE ACCUSED ARE NOT GUILTY OF CRIMINAL MISCONDUCT UNDER
THE PREVENTION OF CORRUPTION ACT, 1988
It is submitted that a public servant is said to commit the offence of criminal misconduct if he
by corrupt or illegal means or by otherwise abusing his position as a Public Servant, obtains
for himself or for any other person any valuable thing or pecuniary advantage. In the present
case, the ingredients of the offence of criminal misconduct are not being fulfilled. The onus
of proof lying upon the accused person is to prove his case by a preponderance of probability
and as he succeeds in doing so, the burden shifts to prosecution which still has to discharge
Page XIII

its original onus that never shifts. A presumption can be drawn only from facts - and not
from other presumptions - by a process of probable and logical reasoning. Hence, all the three
accused are not guilty of offence of criminal misconduct defined under PC Act, 1988.
THAT THE ACCUSED ARE NOT GUILTY UNDER SECTION 120B OF INDIAN
PENAL CODE
The provision of Indian Penal Code which defines Criminal Conspiracy is Section 120A.
Under Section 120A, offence of criminal conspiracy is committed when two or more persons
agree to do or cause to be done an illegal act or a legal act by illegal means. Firstly, the
ingredients of the offence are not fulfilled, i.e. there was no agreement between the accused
and there is no illegal act as well. Secondly, there is lack of evidence to convict the accused
and lastly, prosecution failed to prove the guilt of accused beyond reasonable doubt. Hence,
all the accused are innocent and all are not guilty under Section 120B of Penal code.
THAT THE ACCUSED ARE NOT GUILTY UNDER SECTION 169 OF INDIAN
PENAL CODE
In order to come within the clutches of Section 169, there should be a law which prohibits a
public servant from purchasing certain property and if he does it, it becomes an offence under
Section 169 of the Penal code. But in the instant case, there is no law, rule or any provision
whatsoever which prohibits the accused from purchasing that certain land. Hence, the
accused cannot be prosecuted against the accused. Moreover, the accused are shareholders in
a company which purchased the land involved and the land was transferred in the name of the
accused only after when it was de-notified under the Land Acquisitions Act, 1894. Hence,
the accused are not guilty of the said offence. In the light of the facts and argument advanced,
the accused are not guilty.
Page XIV

ARGUMENTS ADVANCED
I.
THAT THE APPEAL AGAINST ACQUITTAL IS NOT MAINTANABLE
1. That it is submitted that in the light of the facts and settled law, the appeal against acquittal
is not maintainable. This submission is divided into three parts. Firstly, the trial court was
tight in acquittal of all the accused, Secondly, since all the accused have been acquitted by
trial court, the presumption of innocence is strengthened and lastly, the burden of proof in
this case is on the prosecution.
a. That the Trial court rightly acquitted the accused
2. It is clear from the record that during the trial, prosecution has produced 21 witnesses and
related documents that included the witnesses to the sale transaction, officials of the
department of agriculture, copies of official record and notifications and also record from
the registrar of the companies to substantiate the case.1 The defence side also produced
witnesses
and
documentary
evidence
to
prove
genuineness
of
transactions/proceedings.2The 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 thatprosecution has failed to prove the charges beyond reasonable doubt and
acquitted allthe three accused.3
3. It is the settled position of law regarding the powers to be exercised by the High Court in
an appeal against the order of acquittal is that though the High Court has full powers to
review the evidence upon which an order of acquittal is based, it will not interfere with an
order of acquittal because with the passing of an order of acquittal the presumption of
innocence in favour of the accused is reinforced.4The appellate court in considering the
appeal against judgment of acquittal is to interfere only when there are compelling reasons
1
Line 1, Para 1, Page 5, Moot Court Proposition.

3
4
Allarakha K. Mansuriv. State of Gujurat, (2002) 3 SCC 57.
2
Page 1

for doing so.5 An order of acquittal will not be interfered with, by an appellate court,
where the judgment of the trial court is based on evidence and the view taken isreasonable
and plausible. It will not reverse the decision of the trial court merely because a different
view is possible.6
4. In the present case, the Trial Court heard arguments advanced on either side and came to
the conclusion thatprosecution has failed to prove the charges beyond reasonable doubt
and acquitted all the three accused7 after carefully considering all the evidence produced.
Hence, there is no irregularity on the part of the lower court and its decision must be
upheld.The golden thread which runs through the web of administration of justice in
criminal case is that if two views are possible on the evidence adduced in the case, one
pointing to the guilt of the accused and the other to his innocence, the view which is
favourable to the accused should be adopted.8
5. It is evident from the record that wife of the accused entered into an agreement to sell land
with one private person Mr Kisan Singh and the deal was pertaining to the private land
and not any public or government land because, notification under Section 4 of Land
Acquisition Act of 1894 was issued on 28th December 2010,9 whereas wife of the accused
entered into written agreement on 10th December 201010 before the issuance of the said
notification.It was a matter of coincidence that the land purchased by wife of the accused
was also part of the notified land for setting up International Food Market. It is also
pertinent to note that the land purchased by wife of the accused situated on the other side
that rectangle number 2611 in block no. 18 was not requisite under notification. Hence, it
RamanandYadavv. PrabhinathJha, AIR 2004 SC 1053.

Kallu v. State of M.P., (2006) 10 SCC 313: AIR 2006 SC 831.
7
8
Allarakha K. Mansuriv. State of Gujarat, (2002) 3 SCC 57.
9
10
11
6
Page 2

could not be said that wife of the accused purchased the land where the acquisition was
made by the collector of MohinderGarh.
6. Further, the Apex Court observed that, due or proper weight and consideration must be
given to the trial courts decision. It is not enough for the High Court to take a different
view of the evidence. There must also be substantial and compelling reasons for holding
that the trial court was wrong.12Moreover, while sitting in judgment over an acquittal the
appellant Court is first required to seek an answer to the question whether the findings of
the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If
the appellant Court answers the above question in the negative the order of acquittal is not
to be disturbed.13
7. It is clear from the facts that the amended proposal was forward to cabinet of ministers for
approval and the cabinet of ministers approved the amended proposal held on 30th April
201114 and the approval to set up the market for the Milk Products at village Partap Nagar
was processed and approved by not the concerned accused as they didnt have any power
as it was approved by the other concerned Government departments. Hence, it is clear
from the facts that their proposal was not decisive at all, they cannot be charged for any
offence for just recommending or for approving something in which they didnt hold any
exclusive power to decide finally as such.
8. The Supreme Court held though the High Court has power on a review of the evidence to
reverse the order of acquittal, yet in doing so it should not only consider all matters on
record including the reasons given by the Trial Court in respect of the order of acquittal,
but should particularly consider those aspects which are in favour of the accused and
ought not also to act on conjectures or surmises nor on inferences which do not arise on
12
GhureyLal v. State of U.P., (2008) 10 SCC 450.

Ramesh BabulalDoshi v. State Of Gujarat, AIR 1996 SC 2035.
14
13
Page 3

the evidence in the case.15 Further, the Apex Court held that if the main grounds on which
the Court below has based its order acquitting the accused, are reasonable and plausible,
and cannot be entirely and effectively dislodged or demolished, the High Court should not
disturb the acquittal.16
9. The jurisdiction of the Court in dealing with appeal against the order of acquittal, as held
by the Apex Court, is circumscribed by the limitation that no interference is to be made
with the order of acquittal unless the approach made by the lower Court to the
consideration of evidence in the case is vitiated by some manifest illegality on the
conclusion recorded by the Court below is such which could not have been possibly
arrived at by any Court acting reasonable and judiciously and is, therefore, liable to be
characterised as perverse.17The judgment of the trial court is based on reason and the view
taken is plausible. The order of acquittal is not to be disturbed. Hence, the appeal is not
maintainable.
b. That the presumption of Innocence is strengthened by the acquittal
10. The Apex Court18 observed that an appellate court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under the fundamental principle of criminal
jurisprudence that every person shall be presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the accused having secured his acquittal, the
presumption of his innocence is further reinforced, reaffirmed and strengthened by the
trialcourt.19If two reasonable conclusions are possible on the basis of the evidence on
15
KanuAmbuVish v. State of Maharashtra, AIR 1971 SC 2256: (1971) 1 SCC 503.

Ajit Thakur Singh v. State of Gujarat, AIR 1981 SC 733.
17
State of Maharashtra v. IshwarSambhaji Babar, 2004 Cri LJ 438 (Bom).
18
Chandrappav. State of Karnataka, (2007) 4 SCC415.
19
Chandrappav. State of Karnataka, (2007) 4 SCC 415.
16
Page 4

record, the appellate court should not disturb the finding of acquittal recorded by the trial
court.20
11. Hence, as per the cardinal principle of Criminal law, presumption of innocence of accused
until proved guilty is strengthened by the acquittal of the accused by the trial Court and
there is no irregularity or illegality on the part of Trial Court which has the advantage of
looking at the demeanor of the witnesses and moreover, the prosecution must prove the
charges beyond any reasonable doubt, but the prosecution failed to prove the present
case.21 Hence, the appeal against acquittal is not maintainable.
c. That the Burden of Proof is on the Appellant/Prosecution
12. In Major S.K. Kale v. State of Maharashtra,22 the Apex Court held that it was for the
prosecution to prove affirmatively that the appellant by corrupt or illegal means or by
abusing his position obtained any pecuniary advantage for some other person.
13. The appeal against acquittal is not maintainable as there is not sufficient evidence and the
evidence produced is not convincing and reliable. In NirmalenduBiswasv. State23The
Gauhati High Court held that the prosecution must prove by satisfactory and convincing
evidence that the accused abused his position as a public servant dishonestly and for that
purpose the prosecution must produce the best evidence, or particularly the evidence of the
person who would have thrown a flood of light on the subject matter and whose evidence
would clinch the issue. In the instant case, the prosecution failed to produce such evidence
to prove the guilt of the accused.
14. Hence, in the light of settled law, facts and decision of trial court, all the three accused are
innocent beyond reasonable doubt.
20
Mookkiah&Anr. v. State, represented by the Inspector of Police, Tamil Nadu, Criminal Appeal No. 2085 of
2008, Judgment delivered on 4th Jan, 2013.
21
22
AIR 1977 SC 822.
23
1987 Cri LJ 1827 (Gau).
Page 5

II.
THAT THE SANCTION FOR PROSECUTION IS REQUIRED
15. That the sanction for prosecution against a public servant is defined under Section 197 of
the Code of Criminal Procedure (herein referred to as The Code) and to be precise under
sub-section (1). The requirement of previous sanction is intended to afford a reasonable
protection to a public servant, who in the course of strict and impartial discharge of his
duties may offend persons and create enemies, from frivolous, malicious or vexations
prosecution and to save him from unnecessary harassment or undue hardship which may
result from an inadequate appreciation by police authorities of the technicalities of the
working of a department. The prosecution of a Government servant for an offence
challenging his honesty and integrity has also a bearing on the morale of the public
services. The administrative authority alone is in a position to assess and weigh the
accusation against the background of theirown intimate knowledge of the work and
conduct of the public servant and the overall administrative interest of the State.24
16. Such protection has certain limits and is available only when the alleged act done by the
public servant is reasonably connected with the discharge of his/her official duty and is not
merely a cloak for doing the objectionable act.25
17. That the mandatory character of the protection afforded to a public servant is brought out
by the expression, no Court shall take cognizance of such offence except with the
previous sanction. Use of the words, no and shall make it abundantly clear that the bar
on the exercise of power by the Court to take cognizance of any offence is absolute and
complete. Very cognizance is barred. That the complaint itself cannot be taken notice of.
According to Black's Law Dictionary the word cognizance means jurisdiction or the
exercise of jurisdiction or power to try and determine causes. In common parlance, it
24
http://cvc.nic.in/vigman/chaptervii.pdf . Access on 05/03/2013. Time - 13:20.

SankaranMoitra v. Sadhan Das, AIR 2006 SC 1599: (2006) 4 SCC 584.(FB) See also Anjani Kumar v. State
of Himachal Pradesh, AIR 2008 SC 1992: (2008) 5 SCC 248; Bakhshish Singh Brar v. GurmejKaur, AIR 1988
SC 257: (1987) 4 SCC 663.
25
Page 6

means taking notice of. A Court, therefore, is precluded from entertaining a complaint or
taking notice of it or exercising jurisdiction if it is in respect of a public servant who is
accused of an offence alleged to have committed during discharge of his official duty.26
18. That the sine qua non for the applicability of Section 197(1), Code is that the offence
charged, be it one of commission or omission must be one which has been committed by
the public servant either in his official capacity or under colour of the office held by
him.27The clause (1) of Section 197 of the Code its opening words and the object sought to
be achieved by it, and the decisions of the Supreme Court, clearly indicate that a
prosecution hit by that provision cannot be launched without the sanction contemplated. It
is a condition precedent, as it were, for a successful prosecution of a public servant when
the provision is attracted, though the question may arise necessarily not at the inception,
but even at a subsequent stage.28
19. That the protection of a public servant under Section 197 of the Code has certain limits
and 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. If in doing his official duty, he acted in excess of his duty, but there is a
reasonable connection between the act and the performance of the official duty, the excess
will not be a sufficient ground to deprive the public servant from the protection. The
question is not as to the nature of the offence, such as whether the alleged offence
contained an element necessarily dependent upon the offender being a public servant, but
whether it was committed by a public servant acting or purporting to act as such in the
discharge of his official capacity. There cannot be any universal rule to determine whether
there is a reasonable connection between the act done and the official duty, nor is it
possible to lay down any such rule. One safe and sure test in this regard would be to
26
K.Kalimuthuv. State by D.S.P., AIR 2005 SC 2257: (2005) 4 SCC 512.

S.B. Saha v. M.S. Kochar, AIR 1979 SC 1841: (1979) 4 SCC 177: 1979 SCC (Cri) 939.
28
SankaranMoitra v. Sadhan Das, AIR 2006 SC 1599: (2006) 4 SCC 584.(FB)
27
Page 7

consider if the omission or neglect on the part of the public servant to commit the act
complained of could have made him answerable for a charge of dereliction of his official
duty. If the answer to this question is in the affirmative, it may be said that such act was
committed by the public servant while acting in the discharge of his official duty and there
was every connection with the act complained of and the official duty of the public
servant. This aspect makes it clear that the concept of Section 197 does not get
immediately attracted on institution of the complaint case.29
20. That the bar on the exercise of power by the court to take cognizance of any offence is
absolute and complete. Very cognizance is barred.30Sanction is not intended to be nor is
empty formality but solemn and sacrosanct act which affords protection to government
servants against frivolous prosecutions.31That the question is not as to nature of offence
such as whether alleged offence contained an element necessarily dependent upon
offender being a public servant but whether it was committed by public servant acting or
purporting to act as such in discharge of his official capacity. If on facts it is prima facie
found that act or omission forwhich accused was charged had reasonable connection with
discharge of his duty, then it must be held to be official to which applicability of Section
197 cannot be disputed.32
21. That the question as to whether an order of sanction would be found essential would, thus,
depend upon the facts and circumstances of each case. In a case where ex facie no order of
sanction has been issued, when it is admittedly a pre-requisite for taking cognizance of the
offences or where such an order apparently has been passed by the authority not
29
State of Himachal Pradesh v. M.P. Gupta,2003 (10) SCALE 522: (2004) 2 SCC 349. See also P.K. Pradhan
v. State of Sikkim, AIR 2001 SC 2547: 2001 Cr LJ 2547 (SC).(FB)
30
Anjani Kumar v. State of Bihar, AIR 2008 SC 1992: (2008) 5 SCC 248.See also Parkash Singh Badal and
Anr. v. State of Punjab and Ors.,AIR 2007 SC 1274: 2006 (13) SCALE 54: (2007) 1 SCC 1.
31
Dinesh Kumar v. Chairman, Airport Authority of India and Anr.,AIR 2012 SC 858: 2011 (13) SCALE 132:
(2012) 1 SCC 532.
32
Shri S.K. Zutshi and Anr. v. ShriBimalDebnath and Anr., AIR 2004 SC 4174: 2004 (6) SCALE 50: (2004) 8
SCC 31.
Page 8

competent therefore, the Court may take note thereof at the outset. But where the validity
or otherwise of an order of sanction is required to be considered having regard to the facts
and circumstances of the case and furthermore, when a contention has to be gone into as to
whether the act alleged against the accused has any direct nexus with the discharge of his
official act, it may be permissible in a given situation for the Court to examine the said
question at a later stage.33 Previous sanction was a precondition for taking cognizance of
offence and, therefore, there was no requirement that accused must wait till charges were
framed to raise this plea.34That in case of Sanction for prosecution. The plea on want of
sanction can be taken at any stage even at appellate stage.35
22. That in the instant case the plea that the sanction was raised before the special judge.36
And the Special Judge took cognizance of the matter declining the objection. 37 That in
accordance to the pronouncements held by the Honble Court inRomeshLal Jains case
Om Prakashs case and C.Nagarajaswamys case. Further that the accused were
discharging their duty as the Minister in case of accused-1 and the officials in case of
Accused 2 & 3. Therefore the sanction for prosecution is rendered to be an essential for
the present trial of the accused at the appellate stage as it has been cited in the case of.
a. That Section 19 of PC Act and Section 197 of the Code act in different spheres
23. That the sanction for prosecution for the Prevention of Corruption Act of 1988(Herein
referred to as PC Act) is being defined under Section 19and Section 197 of the Code of
Criminal Procedure(Herein referred to as The Code) also defines the sanction for
prosecution. Sanction required under Section 197 of the Code and sanction required under
33
RomeshLal Jain v. Naginder Singh Rana and Ors.,AIR 2006 SC 336:2005 (8) SCALE 810: (2006) 1 SCC
294.
34
Om Prakash and ors. v. State of Jharkhand through the Secretary , Department of Home , Ranchi- 1 and
Anr.,2012 (9) SCALE 291 (FB).
35
State of Karnataka through CBI v. C. Nagarajaswamy,AIR 2005 SC 4308: 2005 (8) SCALE 280: (2005) 8
SCC 370. See also B. Saha and Ors. v. M.S. Kochar, 1979 CriLJ 1367 (SC): MANU/SC/0075/1979;
K.Kalimuthu v. State by DSP, 2005 CriLJ 2190: MANU/SC/0248/2005; P.K. Pardhanv. State of Sikkim, AIR
2001 SC 2547: (2001) 6 SCC 704: MANU/SC/0380/2001.
36
Line 5, Para 3, Page 4-5, Moot Court Proposition.
37
Line 6, Para 3, Page 4-5, Moot Court Proposition.
Page 9

the prevention of Corruption Act, 1988, stand on different footings. Whereas sanction
under the Penal Code in terms of the Code is required to be granted by the state; under the
PC Act it can be granted also by the authorities specified in Section 19 thereof. 38The
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.39
III.
THAT THE ACCUSED ARE NOT GUILTY FOR THE OFFENCE OF

CRIMINAL MISCONDUCT UNDER THE PREVENTION OF
CORRUPTION ACTOF 1988
24. 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 rea. 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.40
38
RomeshLal Jain v. Naginder Singh Rana, (2006) 1 SCC 294 at p. 303: AIR 2006 SC 336: 2005 CriLJ 5068
(SC).
39
KalicharanMahapatra v. State of Orissa,AIR 1998 SC 2595: 1998 (4) SCALE 359: (1998) 6 SCC 411.
40
C.K. JafferShariefv.State (Through CBI),2012 (11) SCALE 71: (2013) 1 SCC 205.
Page 10

25. That the Prevention of Corruption Act,1988 created a new offence called Criminal
Misconduct41. Section 13 of the said Act defined the various categories of Criminal
Misconduct by Public Servants. That a public servant is said to commit the offence of
criminal misconduct if he by corrupt or illegal means or by otherwise abusing his position
as a Public Servant, obtains for himself or for any other person any valuable thing or
pecuniary advantage.42That the ingredients are being stated to be as follows :-(a) the
accused must be a public servant at the time of the offence; (b) he must have used corrupt
or illegal means and obtain for himself or for any other person any valuable or pecuniary
advantage; or (c) he must have abused his position as a public servant and have obtained
for himself and for any other person any valuable thing or pecuniary advantage; or (d)
while holding such office he must have obtained for any other person any valuable thing
or pecuniary advantage.43
26. That the accused must have the mental state or degree of fault at the relevant time. It may
of course differ from crime to crime according to the definition thereof. The matter of
degrees may also differ. That is to say, generally the mental state and the criminal act must
coincide. The criminal act may be one which may be intended by the wrongdoer. It is as
well known that mere intention is not punishable except when it is accompanied by an act
or conduct of commission or omission on the part of the accused. Situation varies in
respect of different kinds of crimes as in some of them even negligence or careless act
may constitute an offence or there may be cases of presumptions and putting the accused
to proof to the contrary.44
41
Section 5, Prevention of Corruption Act of 1947.

Clause (d) of Section 5, Prevention of Corruption Act of 1988.
43
N.V. SubbaRao v. State through Inspector of Police, CBI / SPE, Visakhapatnam , Andhra Pradesh, 2012 (11)
SCALE 614. See also Kanwarjit Singh Kakkar v. State of Punjab and Anr.,2011 (5) SCALE 37: (2011) 13 SCC
158.
44
R. BalakrishnaPillai v. State of Kerala, (2003) 9 SCC 700 at pp. 729-30: 2003(2) SCALE 560.
42
Page 11

27. That the manner and circumstances in which the offences have been committed and the
level of involvement of the accused persons therein are relevant factors. For the said
purpose, it is necessary to prove that the propounders had expressly agreed to or caused to
be done the illegal act but it may also be proved otherwise by adduction of circumstantial
evidence and/ or by necessary implication.45The onus of proof lying upon the accused
person is to prove his case by a preponderance of probability and as he succeeds in doing
so, the burden shifts to prosecution which still has to discharge its original onus that never
shifts.46Suspicion, however strong, could not take place of legal proof.47A presumption
can be drawn only from facts - and not from other presumptions - by a process of probable
and logical reasoning.48
a. That the ingredients under Section 13(1)(d)(i) are not fulfilled
28. That the sub clause (i) of Section 13(1)(d)49 is being stated as by corrupt or illegal means,
obtains for himself or for any other person any valuable thing or pecuniary advantage.
The ingredients defined under Claude (i)50 states that there should be (a) Corrupt or illegal
means; (b) obtains for himself or any other person; (c) any valuable thing or pecuniary
advantage.51 That the word obtains on which much stress was laid does not eliminate an
idea of acceptance of what is given or offered to be given, though it connotes also an
element of effort on the part of the receiver. Whether there was an acceptance of what is
given as a bribe and whether there was an effort on the part of the receiver to obtain the
45
Mohammad Usman Mohammad HussainManiyar and Ors. v. State of Maharashtra, MANU/SC/0180/1981 :

(1981) 2 SCC 443.
46
C.M. GirishBabuv.CBI, Cochin, High Court of Kerala,AIR 2009 SC 2022: 2009 (3) SCALE 107: (2009) 3
SCC 779.
47
Subramanian Swamyv. A. Raja,AIR 2012 SC 3336: 2012 (7) SCALE 520, (2012) 9 SCC 257.
48
Suresh BudharmalKalaniv. State of Maharashtra, MANU/SC/0608/1998: 1998 Cri LJ 4592 (SC).
49
PC Act of 1988.
50
Section 13(1)(d)(i) of Prevention of Corruption Act, 1988.
51
Syed Ahmed v. State of Karnataka,AIR 2012 SC 3359: 2012 (7) SCALE 44: (2012) 8 SCC 527.
Page 12

pecuniary advantage by way of acceptance of the bribe depends on the facts and
circumstances of each case.52
29. The position will, however, be different so far as an offence under Section 5(1)(d) read
with Section 5(2) of the Act is concerned. For such an offence 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 PENAL
CODE, which, as noticed above, can be, established by proof of either "acceptance" or
"obtainment".53
30. If in the process, the Rules or Norms applicable were violated or the decision taken shows
an extravagant display of redundance it is the conduct and action of the Appellant which
may have been improper or contrary to departmental norms. But to say that the same was
actuated by a dishonest intention to obtain an undue pecuniary advantage will not be
correct. That dishonest intention is the gist of the offence under Section 13(1)(d) is
implicit in the words used i.e. corrupt or illegal means and abuse of position as a public
52
R. BalakrishnaPillai v. State of Kerala,2003(2) SCALE 560: (2003) 9 SCC 700. See also Ram Kishan v. State
of Delhi, AIR 1956 SC 476 at p. 478, 1956 SCR 182; M.W. Mohiuddinv. State of Maharashtra, (1995) 3 SCC
567 at p. 570-571: 1995 SCC (Cri.) 546.
53
A. Subairv. State of Kerala,2009 CriLJ 3450, 2009 (8) SCALE 585, (2009) 6 SCC 587, [2009] 10 SCR 1058.
Page 13

servant.54 Whoever does anything with the intention of causing wrongful gain to one
person or wrongful loss to another person is said to do that thingdishonestly.55
31. Therefore, intention is a dominant factor, a mental element which if not present, the
crime cannot be said to have been committed.56 It becomes clear that there is no
justification for construing the expression pecuniary advantage in such a way as to
exclude from its meaning payments of money. That Chandrasekhar Aiyar, J. Observed as
follows: one may except money that is offered, or solicit payment of a bribe, extort the
bribe by threat or coercion, in each case, he obtains a pecuniary by abusing his position as
a public servant.57There is no evidence on record to prove these facts that the accusedappellant had obtained for himself or for any other person any valuable thing or pecuniary
advantage. The prosecution has failed to prove that he has obtained for himself or for any
other person any valuable thing or pecuniary advantage.58
32. That in the instant case, there are no corrupt or illegal means adopted by the accused. That
the essential of obtain defined as secure or gain is not being fulfilled as there was no gain
by the accused. There also was no dishonest intention as the proposal for the establishment
of the International Market was on the agenda of the Farmers Party59being initiated by the
accused and was approved by the Cabinet on 23rd June 2010.60 That the department
recommended on 28th August 2010 for the requirement of the land and hence the land was
being identified in village Partap Nagar situated on the National Highway NH-44 leading
54
C.K. JafferShariefv. State (Through CBI),2012 (11) SCALE 71: (2013) 1 SCC 205.See also M. Narayanan
Nambiar v. State of Kerala, (1963) Supp. (2) SCR 724.
55
Section 24 of Penal code.
56
Rao, A.S. Ramachandra, Commentary on Prevention of Corruption Act 348 (Universal Publishing Co. Pvt.
Ltd, New Delhi, 1st edition, 2004).
57
Seth &Capoor, Prevention of Corruption Act with A Treatise of Corruption Act 526 (Law Publishers, Pvt.
Ltd., Allahabad, 4th edition, 2004). See Ghulam Din Buch v. State of J.& K., 1996 SCC (Cri) 986 at p. - 995996; M.W. Mohiudin v. State of Maharashtra, 1995 SCC (Cri.) 546 at p. 550 .
58
K.R . Purushothamanv. State of Kerala,2005 (8) SCALE 618: (2005) 12 SCC 631: 2005 CriLJ 4648 (SC):
AIR 2006 SC 35.
59
Line 2, Para 1, Page -1, Moot Court Proposition.
60
Page 14

from MohendraGarh to SurenderGarh.61The recommendation was being mooted by the
Ministry of Agriculture and was accepted by the Cabinet Ministers at its meeting held on
4th October 2010.62 That there is no intention being evident from the circumstances as the
Ministry of Agriculture comprising of the Agriculture Minister and Director Agriculture
themselves were insisting on for the establishment of the International Food Market and
hence the composition of Dishonest Intention which is the gist of the offence under
Section 13(1)(d) of PC Act which means gaining advantage for one person or loss to
another over the other was not fulfilled as the intention of the accused(s) was for the
establishment of the International Food Market. The acquisition of the land was started by
the Commissioner with the notification being published on 28th December 2010.63 That the
wife of the accused bought land in the village of Partap Nagar.64And that it was incidental
on part of the wife of the accused to purchase the land in the notified area. 65 That 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 for Milk Products.66 That there was a proposal which was made contrary
to the election manifesto of the Farmers Party to which the accused belonged. 67That it
was the amended proposal that was being advanced to the Cabinet of Ministers for
approval.68That it was just a proposal initiated by the Ministry of Agriculture. That there
was no arbitrary procedure being adopted by the accused and hence was not illegal. Nor
were there any corrupt means to obtain pecuniary advantage as the decision of the cabinet
61

63
Line 18 (Last Line), Para 1, Moot Court Proposition.
64
65
66
67
68
Line 7(3rd Last Line), Para 3, Page 2, Moot Court Proposition.
62
Page 15

was to be binding on the Ministry of Agriculture. Further that the illegal or corrupt are not
being surfaced.
b. That the offence under Section 13(1)(d)(ii) is not defined
33. 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. That the term abuse means mis-use i.e. using his position for something for
which it is not intended. That abuse may be by corrupt or illegal means or otherwise than
those means. The word otherwise has wide connotation and if no limitation is placed on
it, the words corrupt, illegal, and otherwise mentioned in the clause become surplus
age, for on that construction every abuse of position is gathered by the clause. So some
limitation will have to be put on that word and that limitation is that it takes colour from
the preceding words along with which it appears in the clause, that is to say, something
savouring of dishonest act on his part. The juxtaposition of the word otherwise with
words corrupt or illegal means, and the dishonesty implicit in the word abuse indicate
the necessity for a dishonest intention on his part to bring him within the meaning of the
clause.69
34. The Supreme Court examined the question about the supposed conflict between the two
decisions
of
the
Supreme
ManshankarPrabhashankarDwivedi70
Court
and
in
State
of
DhaneshwarNarainSaxena
Gujarat
v.
v.
Delhi
Administration71 held that there seems to be no conflict whatsoever in the aforesaid two
judgments. In this case, the Supreme Court explained that the language of Section 5(1)(d)
of the PC Act, 1947, was clear and unambiguous in the sense that if a public servant by
whatever means, be they corrupt or illegal, obtains for himself or any other person any
69
TarlochanDev Sharmav.State of Punjab &Ors.,AIR 2001 SC 2524: 2001 (4) SCALE 472: (2001) 6 SCC 260.
See also M. NarayanaNambiar v. State of Kerala, AIR 1963 SC 1116 at p. 1118: 1963 Supp (2) SCR 724:
(1963) 2 CriLJ 186 (SC).
70
AIR 1973 SC 330 at p. 336: (1973) 1 SCR 313: (1972) 2 SCC 392.
71
AIR 1962 SC 195: (1962) 3 SCR 259.
Page 16

valuable thing or pecuniary advantage must, in any event, for doing so abuse his position
as a public servant. If such abuse of his position as a public servant, is lacking in the
prosecution case, and there is evidence barely to the effect that he has by some means, be
they illegal or corrupt, obtained for himself or any other person any valuable thing or
pecuniary advantage, that by itself would not be enough.72
35. For convicting the person under Section 13 (1) (d), there must be evidence on record that
accused obtained for himself or for any other person any valuable thing or pecuniary
advantage by either corrupt or illegal means or by abusing his position as a public servant
or he obtained for any person any valuable thing or pecuniary advantage without any
public interest.73An honest though erroneous exercise of power or an indecision is not an
abuse of power. A decision, action or instruction may be inconvenient or unpalatable to
the person affected but it would not be an abuse of power.74
36. That in the instant case the allegations as well as the charges framed by the Honble Trial
Court are not being fulfilled. As there was no abuse of position. That there is a difference
to be understood between use and abuse of position. That the project of the government
for setting up of IMMFP was on the agenda of the Farmers Party.75 That dropping the
project was prerogative of the government as a whole and of the Cabinet Ministers to be in
particular. That it was incidental that the wife of the accused had bought land in the same
notified land.76 Lastly that the abuse would have been there when only the accused would
have been competent alone to pass the directions whereas it was not here in the instant
72
Dhamija, Dr.Ashok, Prevention of Corruption Act 557 (Wadhwa and Company, Nagpur, 1 st edition, 2003).
See also State by Special Police Establishment v. D. Krishnamurthy,1995 Supp (3) SCC 702.
73
Subash Parbat Sonvanev. State of Gujarat,AIR 2003 SC 2169: 2002 CriLJ 2787 (SC): 2002 (4) SCALE 40:
(2002) 5 SCC 86: 2002 Supp (2) SCC 86: [2002] 3 SCR 359.(FB). See also K.R . Purushothamanv. State of
Kerala,2005 (8) SCALE 618: (2005) 12 SCC 631: 2005 CriLJ 4648 (SC): AIR 2006 SC 35.
74
TarlochanDev Sharma v. State of Punjab, (2001) 6 SCC 260.
75
76
Line -1, Para 2, Page 2, Moot Court Proposition.
Page 17

case. Thus there was no abuse of position in the instant case as the supreme body was the
cabinet of minister.
IV.
THAT THE ACCUSED ARE NOT GUILTY OF OFFENCE OF CRIMINAL

CONSPIRACY
37. The provision of Indian Penal Code (Herein referred to as Penal Code) which defines
Criminal Conspiracy is Section 120A.77 Under Section 120A, offence of criminal
conspiracy is committed when two or more persons agree to do or cause to be done an
illegal act or a legal act by illegal means.78This submission is divided into three parts.
Firstly, the ingredients of the offence are not fulfilled. Secondly, there is lack of evidence
to convict the accused and lastly, prosecution failed to prove the guilt of accused beyond
reasonable doubt.
a. That the ingredients of offence are not fulfilled
38. 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.79
That there was no agreement to do an illegal act between the accused
39. In the present case, there is no such agreement to do an illegal act or an act done by illegal
means. Agreement is the rock bottom of criminal conspiracy. Its essence is the unlawful
combination. It consists of this scheme or adjustment between two or more persons which
77
120A. Definition of criminal conspiracy.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.
78
State of Tamil Nadu v Nalini, AIR 1999 SC 2640 (Rajiv Gandhi Assassination case).
79
N.C.T. of Delhi v. Jaspal Singh, (2003) 10 SCC 86.
Page 18

may be expressed or implied or partly expressed or partly implied. 80The meeting of minds
of two or more persons for doing an illegal act or an act by illegal means is sine qua non of
criminal conspiracy.81
40. In Major E.G. Barsayv. The State of Bombay,82 the Supreme Court observed that "The gist
of the offence of criminal conspiracy under Section 120A PENAL CODE is an agreement
to break the law. In State of Himachal Pradesh v.KishanLalPardhan and ors,83 the Apex
Court held thatthe offence of criminal conspiracy consists in a meeting of minds of two or
more persons for agreeing to do or causing to be done an illegal act or an act by illegal
means, and the performance of an act in terms thereof.
41. It is, however, essential that the offence of conspiracy requires some kind of physical
manifestation of agreement. The rationale is that criminal acts done in furtherance of a
conspiracy may be sufficiently dependent upon the encouragement and support of the
group as a whole to warrant treating each member as a causal agent to each act. 84
42. In the present case, there is no evidence to show even prima facie that the accused were
part of the criminal conspiracy. There has been no previous meeting of minds between the
accused to do any act. The shareholders being a part of the company rightly applied for
prior permission for setting up the permission to set up the market for Milk Products at
village Partap Nagar that took over the property which belonged to ND-IMMP Pvt. Ltd.85
The same permission was first recommended by the Department of Agriculture and was
further processed and approved by the other concerned Government departments.86 This
explains that there is no illegality on the part of the accused and on top of that they legally
80
Devender Pal Singh v State (NCT of Delhi) &Anr, (2002) 5 SCC 234: AIR 2002 SC 1661.
Baldev Singh v. State of Punjab, (2009) 6 SCC 564.
82
1961 AIR 1762.
83
1987 (2) SCC 17.
84
FirozuddinBasheeruddin&ors. v. State of Kerala, 2001 (7) SCC 596 : AIR 2001 SC 3488.
85
86
81
Page 19

followed the appropriate procedure. Hence, there is no agreement to do an illegal act on
the part of the accused.
43. A conspiracy is a continuing offence which continues to subsist till it is executed or
rescinded or frustrated by choice of necessity.87 To constitute a continuing conspiracy
there must be continuity of action to produce the unlawful result. 88 Condition precedent
for holding accused guilty of a charge of criminal conspiracy must be considered on the
anvil of the fact which must be established by the prosecution, viz., the meeting point of
two or more persons for doing or causing to be done an illegal act or an act by illegal
means.89
44. In the instant case, merely the fact that the accused have shares in a common private
company does not prove their guilt of conspiring to do an illegal act as criminal conspiracy
is a continuing offence and just one act which merely depicts all the three accused together
is not enough to hold all the accused guilty of charge of criminal conspiracy. Thus,it is
submitted that there was no agreement to do any act between the members, the ingredients
of the offence are nowhere fulfilled and the accused are not guilty of the offence under
section120B of PENAL CODE.
That there was no illegal act done by the accused and any act done by no illegal
means
45. To amount to the offence of criminal conspiracy an agreement must be to do that which is
contrary to or forbidden by law. Being a highly technical offence, this ingredient of the
crime is essential and must be strictly proved.90 Under Section 4391 of the Penal code, an
act would be illegal if it is an offence or if it is prohibited by law.
87
Damodar v. State of Rajasthan, AIR 2003 SC 4414.

KartongenKemi O.C.H. Forvaltining A.B. v. State through C.B.I, 2004 (1) JCC 218.
89
R. Venkatakrishnan v. CBI, (2009) 11 SCC 737.
90
AmritalalHazara v. Emperor, AIR 1916 Cal. 188.
88
Page 20

46. The essence of the agreement to break the law is the agreement to do an illegal act. This
implies that to establish the charge of conspiracy, knowledge about the involvement or
indulgence in either an illegal or a legal act by illegal means is necessary.92
47. In the present case, the defendant being shareholders of ND-IMMP Pvt. Ltd. applied on 10
October 201193 to the Department of Agriculture for permission to set up the market for
Milk Products at village PartapNagar in the aforesaid land purchased by the wife of the
accused and now belonging to ND-IMMP and the same recommendation was approved94
by the other concerned Government departments. Thus it was a mere proposal by the
private company and the Governmental department felt it viable to accept the same. The
government here is the final decision maker of the project and without its acceptance the
private company of the defendants could not carry on with their project. The private
company has the right to refer its proposals for governmental acceptance and there is no
illegal act included in the same. It is submitted that in the present case, the very basic
offence or illegal act is lacking and hence, accused cannot be guilty of offence of criminal
conspiracy.
48. In the instant case, it was incidentally on part of the wife of the accused-1 to purchase the
land which a part of the notified land for setting up International Food Market. 95 This was
a mere coincidence and afterwards it automatically belonged to ND-IMMP Pvt. Ltd.
Merely because of the fact that accused is the husband of Mrs.Nirmala Devi does not
mean he entered into an illegal agreement with her and the other defendants. Moreover the
prosecution witnesses were heard and the evidence taken up by the trial court and it was
proved successfully that there was no evidence against the accused. This process was
91
The word "illegal" is applicable to everything 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.
92
State of Maharashtra v. SomNathThapa, AIR 1996 SC 1744.
93
94
95
Page 21

neither irregular nor illegal and the same should be upheld by the High Court as being
justified.
49. That the prosecution has failed to prove the substantive offences under Section 13 (1)(d)
(i) & (ii) punishable under Section (13) (2) of the Prevention of Corruption Act,1988 and
Sections 169 of the Penal code 1860. Thus, when the illegal act or an act done by illegal
means purported to be done by the accused are missing, the accused cannot be held guilty
for conspiring the same offence under this provision.
b. That there is lack of evidence
50. In Yashpal Mittal v. State of Punjab96, the Apex Court observed that each one of the
circumstances should be proved beyond reasonable doubt. Moreover, in regard to the
appreciation of evidence relating to conspiracy, the Court must take care to see that the
acts or conduct of the parties must be conscious and clear enough to infer their
concurrence as to the common design and its execution.
51. The circumstances proved before, during and after the occurrence become relevant in
determining the complicity of the accused. In State (NCT of Delhi) v. NavjotSandhu @
Afzal Guru,97 the Supreme Court held that a few bits here and a few bits there on which
the prosecution relies cannot be held to be adequate for connecting the accused in the
offence of criminal conspiracy. Such an inference must be premised on sound facts that
eloquently exhibit the intended common design and its execution. In the instant case, there
is no evidence which prove the guilt of the accused and mere some bits here and there
cannot be said to be enough to convict any accused. Further, in Vijayan alias Rajan &Anr
v. State of Kerala,98 the Court held that there must be some evidence on record which
establishes such a common design.
96
1977 (4) SCC 540.

AIR 2005 SC 3820.
98
AIR 1999 SC 1086.
97
Page 22

52. In the present case, there is no such evidence present which proves the guilt of the accused
and further, the accused have been acquitted by the trial court after evaluating all the
evidence present before it, which also strengthened the presumption of innocence of the
accused. The principle to be followed by appellate court considering the appeal against the
judgment of acquittal is to interfere only when there are compelling and substantial
reasons for doing so.99
c. That the prosecution has failed to prove the guilt of accused beyond reasonable
doubt
53. It has been consistently laid down by the Apex Court that where a case rests squarely 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.100 The 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.101 In Bhagat Ram v. State of Punjab,102 it was laid down that where
the case depends upon the conclusion drawn from circumstances the cumulative effect of
the circumstances must be such as to negative the innocence of the accused and bring
home the offences beyond any reasonable doubt.
54. Further, in C. Chenga Reddy v. State of A.P.,103the Court observed that in a case based on
circumstantial evidence, the settled law is that the circumstances from which the
conclusion of guilt is drawn should be fully proved and such circumstances must be
99
ShivajiSahabraoBobade v. State of Maharashtra, (1973) 2 SCC 793;Ramesh BabulalDoshi v. State of

Gujarat, (1996) 9 SCC 225; Jaswant Singh v. State of Haryana, (2000) 4 SCC 484.
100
Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063; Eradu v. State of Hyderabad, AIR 1956 SC 316;
Earabhadrappa v. State of Karnataka, AIR 1983 SC 446; State of U.P. v. Sukhbasi, AIR 1985 SC 1224;
Balwinder Singh v. State of Punjab, AIR 1987 SC 350; Ashok Kumar Chatterjee v. State of M.P., AIR 1989 SC
1890.
101
State of U.P. v. Satish, (2005) 3 SCC 114.
102
AIR 1954 SC 621.
103
(1996) 10 SCC 193.
Page 23

conclusive in nature. Moreover, all the circumstances should be complete and there should
be no gap left in the chain of evidence. Further, the proved circumstances must be
consistent only with the hypothesis of the guilt of the accused and totally inconsistent with
his innocence.
55. In the present case, the prosecution has failed to prove the guilt of the accused beyond
reasonable doubt as there is no evidence which prove the guilt of the accused and mere
some bits here and there cannot be said to be enough to convict the accused. It is
submitted that merely the fact that all the accused are shareholders in one company cannot
be said to be enough to convict the accused and hence, the prosecution has failed to prove
the guilt of the accused beyond reasonable doubt. Therefore, in the light of the facts, the
accused are not guilty of the offence of Criminal Conspiracy defined under Penal Code
V.
THAT THE ACCUSED ARE NOT GUILTY UNDERSECTION 169 OF

INDIAN PENAL CODE
56. The provision is being defined under Section 169104 of Penal Code deals with the offence
of Public servant unlawfully buying or bidding for property which he is not legally bound
not to purchase.The offence under Section 169 Penal code is incomplete without the
assistance of some other enactment which imposes the legal prohibition required. "The
enactment containing the prohibition naturally and necessarily defines the area which is
covered by it, both as to the class of public servants to whom it applies and the nature of
the dealings in which those servants are prevented from engaging"105
57. Further, if there is any code of conduct or rules regarding this condition, they are not
applicable as they have no statutory backing as they do not have any binding value, as
104
169. Public servant unlawfully buying or bidding for property.-- 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.
105
Narayan v. Emperor, 11 CriLJ Rep. 613.
Page 24

rightly held by Andhra Pradesh High Court that A Code of Conduct prescribed by the
Government under certain notification by itself cannot be elevated to the level of law.106
58. In order to come within the clutches of Section 169, there should be a law which prohibits
a public servant from purchasing certain property and if he does it, it becomes an offence
under Section 169 of the Penal code.107 In the instant case, there is no law, rule or any
provision whatsoever which prohibits the accused from purchasing that certain land.
Hence, the accused cannot be prosecuted against the accused.
59. Further, in R. SaiBharathi v. J. Jayalalitha,108 a case with similar facts, the Apex Court
held that Section 169 only recognizes an act as an offence if a public servant is legally
bound not to purchase or bid, purchases or bids for the property. Finally, it is contended
that it would be violating the basic principle of criminal law to convict a person for an act
which may furnish grounds for civil action but which, otherwise, is not prohibited by law.
In any case, it is submitted, the Code of Conduct being unenforceable in a court no civil
action would lie and no such civil action has been spelt out anywhere in the charge or in
the course of trial.
60. Moreover, the accused are shareholders in a company which purchased the land involved
and the land was transferred in the name of the accused only after when it was de-notified
under the Land Acquisitions Act, 1894.109 Hence, the accused are not guilty of the said
offence.In the light of the facts and argument advanced, the accused are not guilt
106
VidadalaHarinadhababu v. N.T. Ramarao, AIR 1990 A.P. 20.

R SaiBharathi v. J. Jayalalitha, 2004 Cri LJ 286 at p.307 (SC).
108
AIR 2004 SC 692.
109
107
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. That the said accused are not guilty of committing the offence of Criminal
Misconduct punishable u/s 13(2) r/w sec 13(1)(d)(i) & (ii) under the Prevention of
Corruption Act of 1988.
2. That the said accused are not guilty of committing the offence of Criminal Conspiracy
punishable u/s 120B of Indian Penal Code of 1860 and Public servant unlawfully
buying or bidding for property punishable u/s 169 of Indian Penal Code of 1860.
3. To uphold the order of acquittal declared by the Trial Court.
4. To dismiss the appeal with costs.
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 Respondent shall as duty bound ever pray.
Counsel for Respondent
Page XV

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TEAM CODE

APPEAL NO. .OF 2013

IN THE MATTER OF:

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

HOSHIAR RAI AND OTHERS...................................................................................RESPONDENT

ON SUBMISSION TO THE HIGH COURT OF SATYA PRADESH

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

MOST RESPECTFULLY SUBMITTED

COUNSEL FOR RESPONDENT

2nd RGNUL MOOT COURT COMPETITION, 2013

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

THAT THE APPEAL AGAINST ACQUITTAL IS NOT MAINTANABLE ................ 1

That the Trial court rightly acquitted the accused ...................................................... 1

MEMORIAL FOR RESPONDENT

2nd RGNUL MOOT COURT COMPETITION, 2013

That the presumption of Innocence is strengthened by the acquittal .......................... 4

That the Burden of Proof is on the Appellant/Prosecution ......................................... 5

II. THAT THE SANCTION FOR PROSECUTION IS REQUIRED .................................. 6

That the offence under Section 13(1)(d)(ii) is not defined ........................................ 16

That the ingredients of offence are not fulfilled - ...................................................... 18

That there is lack of evidence .................................................................................... 22

MEMORIAL FOR RESPONDENT

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 RESPONDENT

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 RESPONDENT

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, COMMENTARY ON PREVENTION OF CORRUPTION ACT