JOURNAL

ON
PRACTICAL TRAINING-III

Submitted by:
NAME:SHUBHAM YADAV
DIV:C
ROLL NO:178
ROLL:9650541235
SUBMITTED TO:
PURBA GANGULY

1
INDEX
Sr Description Pages

1. Wriitten submission of Moot Court Problem 3-46

1.1 Civil Case 3-13

1.2 Criminal Case 14-31

1.3 Constitional Case 32-46

2. Case Commentary 46-61

2.1 Civil Case(Indra Nehru Gandhi v/s. Raj Narain) 46-57

(AIR 1975 SC 597)

2.2 Criminal Case(Case Commentary on Joginder 57-61

Kumar v/s State of U.P)

(1994, 4 SCC 260)

3 Report on Pre -Session Preparation and 62-77

Techiques of interviewing clients by advocates

3.1 Clint Interviewing Techniques 62-69

3.2 Pre-trail preparation 70-74

3.3 Report about Chamber visit(Adv. Ajit Kenjale) 75-77

2
Moot problem (Civil Case)

BEFORE THE HON’BLE

MUMBAI DISTRICT CONSUMER REDRESSAL FORUM

CIVIL PLAINTIFF JURISDICTION

Civil Suit No....of 2021

HEALTHY PRODUCTS LTD.
(PLAINTIFF)
V.
BODY WELLNESS PRODUCT LTD.
(DEFENDENT)

CIVIL SUIT WITH REGARDS TO CONSUMER REDRESSAL

FORUM AND CIVIL PROCEDURAL CODE

MEMORANDUM ON BEHALF OF PLAINTIFF

3
 TABLE OF CONTENTS

TABLE OF CONTENT .................................................................................................................... 1

TABLE OF ABBREVATIONS......................................................................................................... 5

INDEX OF AUTHORITIES ............................................................................................................ 3

STATEMENT OF JURISDICTION ................................................................................................. 7

SUMMARY OF FACTS .................................................................................................................. 8

ISSUE RAISED ............................................................................................................................... 9

SUMMARY OF ARGUMENTS .................................................................................................... 10

ARGUMENTS ADVANCED .........................................................................................................11

PRAYER..........................................................................................................................10

4
 TABLE OF ABBREVATIONS

1. & And

2. AIR All India Reporter

3. Co Company

4. Del Delhi

5. Edn Edition

6. Hon’ble Honourable

7 Ltd Limited

8. No Number

9. Ors Others

10. p Pages

11. HC High Court

12. pp Pages

13. Pvt Private

14. SC Supreme Court

15. SCC Supreme Court Case

16 SCR Supreme Court Report

17. Sec Section

18. Ss Sections

19. v Versus

20. vol Volume

21. Art Article

5
 LIST OF REFERENCE

1. CIVIL PROCEDURE CODE 1908

2. CONSUMER PROTECTION ACT, 1986

WEBSITES REFERRED

• www.lexisnexisacademic.com

• www.manupatra.com

• www.britannica.com

• www.environmental-mainstreaming.org

• www.legalserviceindia.com

LIST OF CASES

1. Dabur India v. Colortek Meghalaya Pvt.Ltd.

2. Pepsi Co. Inc. v. Hindustan Coca Cola Ltd.

3. Reckitt & Colman of India Ltd. v. M.P. Ramchandran 1

4. Havells India Ltd. v. Amritanshu Khaitan

5.Havells India Ltd. v. Amritanshu Khaitan

6
 STATEMENT OF JURISDICTION

The trademark POWDER MILK ENERGY DRINK in the year 1943 which is registered in its
favour in various classes.

2. Under license has extensively marketed and sold ENERGY DRINK in India since the past
many decades. The product MILK POWDER is being sold in many countries around the
world in different formulation in order to cater the needs of the varying consumers and its
drink MILK POWDER is seen as a complete health drink amongst the consumers.

3. The product MILK POWDER has 23 essential nutrients, that is, Protein, Fat,
Carbohydrate, Vitamin B12, Folic Acid, Vitamin B2, Vitamin B6, Vitamin C, Vitamin A,
Vitamin B1, Naicin, Vitamin D, Vitamin E, Iodine, Calcium, Iron, Zinc, Phosphorus,
Sodium, Potassium, Chloride, Selenium and Copper. According to the plaintiffs‟ it has
carefully selected the said ingredients for the overall growth and development of the child‟s
body and mind and it has been proven that supplementation of the child‟s nutrient with
MILK POWDER improves micronutrient status and promotes physical and mental
development in children.

4.TVC clearly shows the intention of the defendant behind the launch and is telecasting the
same to denigrate the product MILK POWDER. Though in law the defendant may be entitled
to puff its product but it is not allowed to denigrate the product of other parties.

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 SUMMARY OF FACTS
In the year 2020 around mid-July, Healthy Products Limited observed a TV
commercial trivializing its product HEALTHY BODY MILK POWDER. The
impeached TVC ( television commercial ) was being telecasted in various languages
including, English, Tamil, Bengali on various television channels. In the impugned
TVC, the component which got the plaintiff’s eyes was, it said one cup of SWASTH has
the same amount of proteins as two cups of HEALTHY BODY MILK POWDER.

MUMBAI DISTRICT CONSUMER REDRESSAL FORUM

The court observed that. "This Court finds that on playing the TVC, there is no
voiceover with regard to the disclaimer in reference to the serve size nor is the time
sufficient to read the said disclaimer. In view of this fact, the present advertisement in
the electronic media would be clearly disparaging as on a bare looking at the
advertisement, a viewer only sees a comparison of one cup of SWASTH with two cups
of HEALTHY BODY with no reference to the serve size"

Therefore till the final disposal of the suit the defendant is restrained from advertising the
television commercial in the present form.

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 ISSUE RAISED
Th following question are presented before the hon’ble Mumbai District
Consumer Redressal Forum in the instant matter:

1. Whether permanent injunction can be granted on the TVC or not?

2. Whether the TVC is actionable or not?

3. Whether the TVC is misleading or not?

9
 SUMMARY OF ARGUMENTS
The television commercial (TVC) in dispute claimed that one cup of Swasth was equivalent
to two cups of Healthy Body. The main grievance of Healthy Body with the TVC being for
only six seconds and wouldn’t be able to clarify the disclaimer through the voiceover that the
serving size of the recommended serving size was different. It argued that six second is too
less a time for anyone to be able to notice this disclaimer on the TVC.

The intent and effect of the advertisement was to educate the consumers with respect to the
protein content in one cup of Swasth as per the recommended serve size of 33 grams being
equal to two cups of Healthy Body as per the recommended cup size 27 grams as provided in
their respective packages. The TVC is neither misleading nor disparaging nor defamatory and
is factually correct, it had said.

“This Court finds that on playing the TVC, there is no voiceover with regard to the disclaimer
in reference to the serve size nor is the time sufficient to read the said disclaimer. In view of
this fact the present advertisement in the electronic media would be clearly disparaging as on
a bare looking at the advertisement a viewer only sees a comparison of one cup of Swasth
with two cups of Healthy Body with no reference to the serve size.

“The said argument defies the fact that TV viewership is continuous and on daily basis and
hence every new person who views the advertisement would be clearly misled. Consequently,
till the disposal of the suit the defendant is restrained from advertising the impugned TVC in
its present form." It further added.

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 ARGUMENTS ADVANCED

The Consumer Forum considered and relied on a plethora of judgments on misleading

advertising, disparagement, and the law regulating the publishing of advertisements on
television in reaching its interim relief decision, including

Dabur India v. Colortek Meghalaya Pvt. Ltd: When dealing with the issue of misleading
advertising, the Delhi High Court developed the following guiding principles

1.Advertisements are protected as commercial speech under Article 19(1)(a);

2.An advertisement must not be false, misleading, or deceptive;

3.However, there are certain cases where the advertisement must not be taken as false, but
rather as a glorious representation of one’s own product; and

4.Only where the impugned advertisement goes beyond glorifying its product, and is
deceptive and misleading, the precluded advertisement is subject to the precluded
advertisement.

When dealing with the principles of law of disparagement developedin Pepsi Co. Inc. v.
Hindustan Coca-Cola Ltd., the High Court held that:

(1) The intent of the advertisement – this can be understood from its story line and the
message sought to be conveyed. (2) The overall effect of the advertisement – does it promote
the advertiser’s product or does it disparage or denigrate a rival product? In this context, it
must be kept in mind that while promoting its product, the advertiser may, while comparing it
with a rival or a competing product, make an unfavourable comparison, but that might not
necessarily affect the story line and message of the advertised product or have that as its
overall effect. (3) The manner of advertising – is the comparison by and large truthful or does
it falsely denigrate or disparage a rival product? While truthful disparagement is permissible,
untruthful disparagement is not permissible.”

Reckitt & Colman of India Ltd. v. M.P. Ramchandran[3]:In this case, the Calcutta High
Court held that a seller can declare that his products are the best or better than those of a
competitor, even if the declaration is false. When making such a declaration, he may compare
the benefits and drawbacks of his products to those of competitors; however, the seller is not
allowed to disparage the goods of his competitors, and if there is no defamation, the
competitor would have no cause of action to bring a case of false advertising and
disparagement.

In Havells India Ltd. v. Amritanshu Khaitan[4]:The distinction between comparative

advertisement, deceptive advertising, and disparagement has been explained by the Delhi
High Court. Comparative advertising is healthy and promoted in the spirit of competition, but

11
disparagement is not, and a cause of action must occur in the case of a false advertisement,
according to the court.

In Gillette India Limited v. Reckitt Benckiser (India) Private Limited[5]:When deciding cases
of disparagement, the Madras High Court made a distinction between electronic and print
media. It concluded that electronic media, as opposed to print media, has a greater ability to
leave a lasting impression on audiences, and that a “catchy expression, a well-enacted skit or
storey line, or even distinctive sounds or distinctive collocation of colours create a lasting
effect, particularly when viewed repeatedly.”

The High Court held that the impugned advertisement was deceptive and disparaging, even
though the disclaimer was included in the advertisement, it was not explicit, and the
advertisement gave the impression that one cup of Complan was equivalent to two cups of
Horlicks, without taking the serve size into account. Based on the above, the High Court
determined that the balance of convenience was in favour of Horlicks, who would suffer
irreparable harm if the impugned advertisement’s telecast was not halted, and issued an
interim injunction.

This particular Order significantly differentiated between the gradations of advertisements

published in print media in contrast to electronic media. It exhibited that an uncongealed
viewpoint was a prerequisite in determining similar content of advertisements when
manifested in divergent categories of media. This judgment also provides a basis on which
courts and companies/manufacturers can bank while deciding and programming
advertisements discreetly.

This break request of the Delhi High Court significantly recognized the subtleties of
publicizing in electronic media when contrasted with print media. It showed that a liquid
point of view was fundamental in making a decision about indistinguishable substance of
commercials when communicated in various types of media. It additionally sets the
establishment on which courts and sponsors can depend on while arbitrating and broadcasting
notices separately. The Court accentuates the way that TV viewership is nonstop.
Consequently, the equilibrium of comfort lies for the offended parties. Additionally, the
customer saw it consistently. Henceforth, every new individual who sees the promotion
would be unmistakably misdirected.

The law concerning deceptive notices is quickly evolving. It could be interesting to see that
the Delhi High Court had before allowed the course of a comparative sort of promotion
(Horlicks Ltd. and Anr. v. Heinz India Pvt. Ltd.) as print media however repressed a similar
when broadcasted as electronic media. This happened on the grounds that commercials
through electronic media should make a more profound effect on the crowd than through
print media. Electronic media includes a consolidation of both sound and visual presentation
which all the more probably impacts the crowd and which is the reason it needs exact
guidelines. Moreover, an examination of the case laws alluded above shows that the law
identifying with misdirecting ads is incredibly abstract and a little adjustment in the reality
may influence the result. Apparently while it isn’t deriding and misdirecting for a dealer to

12
contrast his items and his rival’s and even case that his item is in a way that is better than
those of his competitor’s, it could be decrying and deceiving if the contender’s products are
demonstrated to be mediocre compared to the seller’s.

As obvious from the name, a deceptive promotion is one that deludes, controls, or is probably
going to mislead or control the purchaser. These commercials can cause genuine harm to the
customers, just as contenders, and thus are needed to be controlled. The courts, while
choosing different cases, have attempted to find some kind of harmony between securing the
privilege to business discourse and the interest of purchasers and contenders.

PRAYER
THEREFORE, in the lights of the facts used, issued raised, argument advanced & authorities
cited, it is most humbly and respectfully prayed that this Hon’ble court may be pleased to
adjudged and declared that:
1. Permanent Injunction to be imposed on the airing of TVC of Swasth with immediate
effect.
2. Swasth i.e Body Wellness Products Limited to be made actionable for adequate
compensation and damages to Healthy Products Limited as the TVC aired by Swasth is
prominently misleading and creates a fallacious implication to the consumers regarding
Healthy Body product amounting to undue influence on Consumers.
3. The court may also be please to pass any other order, which this Hon’ble court may deem
fit in the light of justice, equity & good conscience.

Counsel for Plaintiff

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 1. Moot problem 1 (Criminal Case)

BEFORE THE HON’BLE

HIGH COURT OF BOMBAY

CRIMINAL APPELLATE JURISDICTION:

Criminal Appeal No… of 2021

NIHAR

(APPELLANTS)

V.

STATE OF MAHARASTRA

(RESPONDENTS)

CRIMINAL APPEAL CHALLENGING THE DISMISSAL OF THE MATTER

BY THE HON’BLE BOMBAY HIGH COURT

MEMORANDUM ON BEHALF OF THE DEFENDANT

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 INDEX

1. List of References……………….………………………………………………………3

2. List of Cases…………….………………………………………………………………4

3. Statement of Jurisdiction………………….…………………………………………….5

4. Statement of facts…………………………………….…………………………………6

5. Issues Raised……………………………………………………………………………7

6. Arguments advanced………………………………………………………………..8-13

7. Prayer …………………………………………………………………………………14

LIST OF ABBREVIATIONS

15
1. &: And

2. AIR: All India Reporter

3. All : Allahabad

4. Bom : Bombay

5. Cal: Calcutta

6. Co.: Company

7. Corp.: Corporation

8. Del : Delhi

9. Edn.: Edition

10. Hon’ble: Honourable

11. HC : High Court

12. Ltd: Limited

13. No: Number

14. Ors: Others

15. p: Page

16. pp: Pages

17. Pvt.: Private

18. SC: Supreme Court

19. SCC: Supreme Court Cases

20. SCR: Supreme Court Reports

21. Sec.: Section

22. Ss.: Sections

16
23. v: Versus

24. vol.: Volume

17
 LIST OF REFERENCES

o The Indian penal code 1860

o The Indian Evidence Act 1872

18
 List of Cases

Virsa Singh v. State of Punjab

Sehaj Ram v. State of Haryana

Mahmood vs State

19
 STATEMENT OF JURISDICTION

The Appellants humbly approach the Hon’ble High Court under Section 374(2) of the
Code of Criminal Procedure, 1973, which reads as follows:

“374. Appeals from convictions.-

(1) Any person convicted on a trial held by a High Court in its extraordinary original
criminal jurisdiction may appeal to the Supreme Court.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions
Judge or on a trial held by any other Court in which a sentence of imprisonment for more
than seven years has been passed, may appeal to the High Court.
(3) Save as otherwise provided in sub-section (2), any person,-

(a) Convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge

or Magistrate of the first class, or of the second class, or

(b) sentenced under section 325, or

(c) In respect of whom an order has been made or a sentence has been passed under
section 360 by any Magistrate, may appeal to the Court of Session.

The respondents humbly submit to the jurisdiction of this Hon’ble Court.

STATEMENT OF FACTS

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1. The accused, Nihar at the time of the alleged murder, was second in command of the
Indian Naval Ship “Indore”. He married Seema in 1999 and had three children.

2. Since the time of marriage, the couple were living at different places having regard to the
exigencies of service of Nihar. Later, they shifted to Bombay.

3. The deceased Arjun was unmarried and was about 34 years of age at the time of his death.
He was doing business in automobiles in Bombay and in the year 1990, Agni, who were
common friends of Nihar and Arjun, introduced Arjun and his sister to Nihar.

4. Nihar, as a Naval Officer, was frequently going away from Bombay in his ship, leaving his
wife and children in Bombay.

5. Gradually, friendship developed between Arjun and Seema, which culminated in illicit
intimacy between them.

6. Nihar came to know about relationship from the common friends as well as confession
made by her to Nihar. This disturbed Nihar and at several occasions he found at that Seema
was not interested in him. Nihar also questioned Arjun to which he admitted the illicit
relationship.

7. This matter was discussed amongst Nihar and Seema. Seema pleaded not to question Arjun
about their relationship.

8. But one day Nihar visited Arjun and that time Arjun stated to Nihar that he is not serious
about his relation with Seema. This statement enraged Nihar and he threatened that he will
shoot Arjun.

9. Next day he drove his wife, and his children and a neighbour’s child in his car to a cinema,
dropped them there and promised to come and pick them up at 6 P.M. when the show ended.
He then drove his car to his ship, as he wanted to get medicine for his sick dog, he
represented to the authorities in the ship that he wanted to draw a revolver and six rounds
from the stores of the ship as he was going to drive alone to Ahmednagar by night.

10. On receiving the revolver and six cartridges, and put it inside a brown envelope. Then he
drove his car to Arjun’s office, and not finding him there, he drove to Arjun’s flat, rang the
doorbell, and, when it was opened by a servant, walked to Arjun’s bed-room, went into the
bed-room and shut the door behind him.

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11. Prosecution case was that Nihar planned and killed Arjun in his bedroom. However in
Session Court defence was that Arjun tried to grasp the envelope and while preventing him it
accidentally shot at him.

12. After the shooting the accused went back to his car and drove it to the police station
where he surrendered himself

13. The Session Court convicted the accused under Section 302 of IPC.

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 ISSUES RAISED

WHETHER THE ACCUSED IS GUILTY OF MURDER OR NOT?

WHETHER THE STATEMENT OF HIS WIFE AMOUNTS TO GRAVE

AND SUDDEN PROVOCATION?

WHETHER THE ACT OF ACCUSED COMES UNDER THE EXCEPTION

MENTIONED IN INDIAN PENAL CODE OR NOT?

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ARGUMENTS ADVANCED
1) Whether the accused is guilty of murder or not?

With regard to this issue the petitioner humbly avert before this Hon’ble court that the
accused is guilty of murder and should be punished under Section 302 of IPC.

Section 300 of IPC

Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by
which the death is caused is done with the intention of causing death, or—
(Secondly) —If it is done with the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom the harm is caused, or—
(Thirdly) —If it is done with the intention of causing bodily injury to any person and the
bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause
death, or—
(Fourthly) —If the person committing the act knows that it is so imminently dangerous that it
must, in all probability, cause death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of causing death or such injury as
aforesaid.

Section 302 of IPC

Punishment for murder.—Whoever commits murder shall be punished with death, or

imprisonment for life, and shall also be liable to fine.

In Virsa Singh v. State of Punjab AIR 1958 SC 465, it was held that, in the absence of any
circumstances to show that the injury was caused accidentally or unintentionally, the
presumption would be that the accused had intended to cause the inflicted injury and the
conviction was upheld. The Supreme Court, further laid down in order to bring a case within
clause (3) of Section 300, the prosecution must prove the following:
i) First, it must establish, quite objectively, that a bodily injury is present;
ii) Secondly, the nature of the injury must be proved; it is purely objective investigation;

24
iii) Thirdly, it must be proved that there was an intention to inflict that particular bodily injury,
that is to say, that it was not accidental or unintentional or that some other kind of injury was
intended;

Once these three elements are proved to be present, the enquiry proceeds further; and

iii) Fourthly, it must be proved that the injury of the type just described made up of the three
elements set out above, is sufficient to cause death in the ordinary course of nature. This part
of the enquiry is purely objective and inferential and has nothing to do with the intention of
the offender.

In Sehaj Ram v. State of Haryana AIR 1983 SC 614, the accused, who is a constable fired
several shots with a 303 rifle at another constable. One shot hit the victim beneath the knee of
his right leg and he fell down. Even after that, the accused fired another shot at him, though
the shot did not hit him.

25
2) Whether the statement of his wife amounts to grave and sudden
provocation?

With respect to this issue the petitioner avert before this Hon’ble court that there was no
grave and sudden provocation by his wife. At noon on April 27, 1959, when they were sitting
in the sitting-room for the lunch to be served, the accused put his arm round his wife
affectionately, when she seemed to go tense and unresponsive. After lunch, when he
questioned her about her fidelity, she shook her head to indicate that she was unfaithful to
him. He guessed that her paramour was Ahuja. Thereafter, he drove his wife, two of his
children and a neighbour’s child in his car to a cinema, dropped them there and promised to
come and pick them up at 6 P.M. when the show ended. He then drove his car to his ship, as
he wanted to get medicine for his sick dog, he represented to the authorities in the ship, that
he wanted to draw a revolver and six rounds from the stores of the ship as he was going to
drive alone to Ahmednagar by night, though the real purpose was to shoot himself. On
receiving the revolver and six cartridges, and put it inside a brown envelope. Then he drove
his car to Ahuja’s office, and not finding him there, he drove to Ahuja’s flat, rang the door
bell, and, when it was opened by a servant, walked to Ahuja’s bed-room, went into the bed-
room and shut the door behind him. He also carried with him the envelope containing the
revolver, entered his bed-room and shot him dead.
This clearly state that there was proper planning by accuse. This is not a case of grave and
sudden provocation by his wife.
Grave and sudden provocation
The death happening due to acts done under the influence of grave and sudden provocation is
an exception to the section 300 of the IPC. When the accused is suddenly provoked by any
person and that provocation makes the accused to lose his control which ultimately leads to
death of the person who provoked or any other person by mistake or accident then the
accused will not be liable for murder but only for culpable homicide.
There should be no time gap between the provocation and the retaliatory action caused due to
that provocation. The accused cannot take the plea of sudden or grave provocation if the
death has been caused due to well managed plan and the main aim behind provocation was to
commit murder.

26
For an exception on the ground of “grave and sudden provocation” the following facts must
be proved —
(1) That the accused received provocation; Memorial on behalf of Petitioner

27
(2) That the provocation was (a) grave, and (b) sudden;
(3) That he was deprived by the provocation of his power of self-control;
(4) That while thus deprived of his power of self-control and before he could cool down he
caused the death of the person who gave him the provocation.

Mahmood vs State AIR 1960

(i). The provocation was sudden; (ii) the provocation was grave; and (iii) loss of self control.
These three ingredients may be considered one by one.
(i) Whether the provocation was sudden or not does not present much difficulty. The word
'sudden' involves two elements. Firstly, the provocation must be unexpected. If an accused
plans in advance to receive a provocation in order to justify the subsequent homicide, the
provocation cannot be said to be sudden. Secondly, the interval between the provocation and
the homicide should be brief. If the man giving the provocation is killed with to a minute
after fee provocation, it is a case of sudden provocation, If the man is killed six bouts after the
provocation, it is not a case of sudden provocation,
(ii) The main difficulty lies in deciding Whether a. certain provocation was grave or not. A
bare statement by the accused that he regarded the provocation as grave will not be accepted
by the Court. The Court has to apply an objective test for deciding whether the provocation
was grave or not. A good test for deciding whether a certain provocation was grave or not is
this; "Is a reasonable man likely to lose self-control as a result of such provocation?' If the
answer is in the affirmative, the provocation will be classed as ' grave. If the answer is in the
negative, the provocation is not grave. In this context, the expression 'reasonable man' means
a normal or an average person. A reasonable man is not the ideal man or the perfect being. A
normal man sometimes loses temper. There is, therefore, no inconsistency in saying that, a
reasonable man may lose self-control as a result of grave provocation. A reasonable or
normal or average man is a legal fiction. The reasonable man will vary from society to
society. A Judge should not impose Ms personal standards in this matter. By training, a Judge
is a patient man. But the reasonable man or the normal man need not have the same standard
of behaviour as the Judge himself. The reasonable man under consideration is a member of
the society, in which the accused was living. So, education and social conditions of the
accused are relevant factors- An ordinary exchange of abuses is a matter of common
occurrence. A reasonable man does not lose self-control merely on account of an ordinary
exchange of abuses. So Courts do not treat an ordinary exchange of abuses as a basis for

28
grave provocation. On the other hand, in most societies adultery is looked upon as a very
serious matter. So Courts are prepared to treat adultery as a basis for grave provocation.
(iii) I have pointed out that the question of loss of self-control comes up indirectly in deciding
whether a particular provocation was grave or not. So, if it is proved that the accused did
receive grave and sudden provocation, the Court is generally prepared to assume that
homicide was committed while the accused was deprived of the power of self-control- In
some cases it may be possible for the prosecution to prove that the accused committed the
murder with a cool head in spite of grave provocation.

3) Whether the act of accused comes under the exception mentioned in

Indian Penal Code or not?

With regard to this issue the petitioner humbly avert before this Hon’ble court that the act of
accused don’t comes under any exception mentioned in the Indian Penal Code. This is a clear

29
case of murder as mentioned in Section 300 of Indian Penal Code. Neither it lie under Section 80
of Indian Penal Code nor under exceptions mentioned in Section 300.
Section 80
Accident in doing a lawful act.—Nothing is an offence which is done by accident or misfortune,
and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner
by lawful means and with proper care and caution. Illustration A is at work with a hatchet; the
head flies off and kills a man who is standing by. Here, if there was no want of proper caution on
the part of A, his act is excusable and not an offence.
This murder cannot be said as accident as there was proper planning from accuse.
Section 300 Exception
That the provocation is not sought or voluntarily provoked by the offender as an excuse for
killing or doing harm to any person.
That the provocation is not given by anything done in obedience to the law, or by a public servant
in the lawful exercise of the powers of such public servant.
That the provocation is not given by anything done in the lawful exercise of the right of private
defence.
It do not lies under any exception mention under Section 300 as there was no grave and sudden
provocation. Memorial on behalf of Petitioner

30
 PRAYER

THEREFORE, in the lights of the facts used, issued raised, argument advanced & authorities
cited, it is most humbly and respectfully prayed that this Hon’ble court may be pleased to
adjudged and declared that:

1. The accused is guilty of murder

2. The court may also be please to pass any other order, which this Hon’ble court may deem fit in
the light of justice, equity & good conscience.

Counsel for Respondant

31
 BEFORE,

THE HON’BLE SUPREME COURT OF SINDHIA

WRIT PETITION NO. /2021

AYUB KHAN AND OTHERS

(PETITIONER)

V.

UNION OF SINDHIA AND OTHERS(RESPONDENT)

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF SINDHIA

UPON SUBMISSION TO THE HON’BLE CHIEF

JUSTICE OF SUPREME COURT OF SINDHIA
AND OTHER PUISINE JUDGES

MEMORANDUM ON BEHALF OF THE PETITIONERS

32
 TABLE OF CONTENTS

• INDEX OF AUTHORITIES .............................................................................................. 3

• List Of Cases

• Websites Referred

• STATEMENT OF JURISDICTION…
4

• STATEMENT OF FACTS
5

• ISSUES PRESENTED…
6

• SUMMARY OF ARGUMENTS
7

• ARGUMENTS ADVANCED… ....................................................................................... 9

• PRAYER…
15

33
 INDEX OF AUTHORITIES

LIST OF CASES

• Maneka vs. Union of India .................................................................AIR 1978 SC 597

• BandhuaMuktiMorcha vs. Union of India… ......................................... AIR 1984 SC 802

• Subhash Kumar v/s State of Bihar .......................................................(1991) 1 SCC 598

• M.C. Mehta v/s Union of India ...................................................................... AIR 2002 SC 1955

• Arjun Gopal and others v/s Union of India and others ......................... (2017) 1 SCC 412

• State of Maharashtra vs. HimmatbhaiNarbheramRao… ...................... AIR 1970 SC 1157

• Municipal Corpn. Of the City of Ahmedabad v.

Jan MohammadUsmanbhai ............................................................... AIR 1986 SC 1205

WEBSITES REFERRED

• www.lexisnexisacademic.com

• www.manupatra.com

• www.britannica.com

• www.environmental-mainstreaming.org

• www.legalserviceindia.com

34
 STATEMENT OF JURISDICTION

The jurisdiction of this Hon’ble Court under Art 32 of the Constitution of India has

beeninvoked by the petitioner as Article 21 has been violated.

32. Remedies for enforcement of rights conferred by this Part

• The right to move the Supreme Court by appropriate proceedings for the
enforcement ofthe rights conferred by this Part is guaranteed.

• The Supreme Court shall have power to issue directions or orders or writs, including
writsin the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part.

• Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and
( 2 ),Parliament may by law empower any other court to exercise within the local limits
of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause
( 2 ).

• The right guaranteed by this article shall not be suspended except as otherwise
providedfor by this Constitution.

35
 STATEMENT OF FACTS

• The petition has been filed on behalf of petitioner 1 - Ayub Khan, petitioner 2 –

Gopal Sharma and petitioner 3 – Anil Yadav, who are infants, by their next

friends

i.e. by their fathers.

• Pollution affects all citizens, irrespective of their age. However children are much

more vulnerable to air pollutants as exposure thereto may affect them in various

ways,including aggravation of asthma, coughing, bronchitis, retarded nervous

system breakdown and even cognitive impairment.

• Air pollution hits its nadir (worst stage) during Diwali time because of

indiscriminateuse of firecrackers, which causes increase in harmful particulate

matters, such as PM2.5 or PM10, in the environment at an alarming level causing

situation of emergency.

• On onset of winter itself, air quality in the region of Sunder Nagar is

deteriorated and it is aggravated because of festival/marriage season in which

firecrackers, sparkles andminor explosives are indiscriminately used.

36
 • Fireworks cause harmful effect on the ambient air and to the lungs, eyes and

ears of the people. Not only that, but the noise of the fireworks also causes

extreme nuisanceto citizens particularly the ailing and the aged.

• Therefore the Petitioners have approached this Hon’ble Court for seeking relief

as pollution creates violation of right to health, violation of provision of

different lawsand well established principles.

ISSUES PRESENTED

Issue I

Whether fundamental right to health and wholesome environment of the petitioner

enshrinedunder Article 21 has been violated or not?

37
 Issue II

Whether the fundamental right to carry on business, trade or occupation of the

respondent enshrined under Article 19(1)(g) would be violated or not if a ban is

imposed on firecrackers?

SUMMARY OF ARGUMENTS

• Whether fundamental right to health and wholesome environment of the

petitionerenshrined under Article 21 has been violated or not?

Art. 21 includes Right to Good Health as well as Right to Wholesome Environment along with
various other rights. Clean and healthy environment is itself a Fundamental Right.
Burning of firecrackers causes pollution that damages environment and affects health

of allcitizens especially children.

As such it violates the right to health as well as right to wholesome environment of

thepetitioner, both enshrined under Art. 21.

• Whether the fundamental right to carry on business, trade or occupation of

the respondent enshrined under Article 19(1)(g) would be violated or not if

a ban isimposed on firecrackers?

38
Article 19(1)(g) guarantees to all citizens the right to practise any profession or to carry

onany occupation, trade or business. However, reasonable restrictions can be imposed

on the use of this right as mentioned Under Article 19 (6). The phrase “in the interest

of general public” is the main ingredient in Art 19(6) and it includes public health

within its ambit. Since firecrackers endangers life, health, property and environment a

reasonable restrictioncan be put on it and that would not violate the said fundamental

right.

• Whether total prohibition or blanket ban on firecrackers is justified or not?

The right guaranteed under Art. 19 (1) (g) is not sufficiently broad to encompass

activitieswhich are inherently pernicious or dangerous to society. These are

considered to be “res

extra commercium” and there is no fundamental right in their trade or business

and thegovernment is at liberty to regulate through licensing or to prohibit them

altogether.

It has been time and again proved that bursting of firecrackers endangers heath, life,

property and environment too. Therefore it is inherently pernicious or dangerous to

society and as suchis to be considered res extra commercium. Therefore total prohibition

or blanket ban on fireworks is justified.

39
 ARGUMENTS ADVANCED

Issue 1

Whether fundamental right to health and wholesome environment of the

petitioner enshrined under Article 21 has been violated or not?

It is humbly submitted before this Hon’ble Court that,

Art. 21 provides protection of life and personal liberty. In the landmark judgment of

Manekavs. Union of India1 the Supreme Court had held that, right to life as enshrined in

Art 21

means “something more than mere animal existence” and would include right to live with

human dignity. It would include all those aspects which go to make a man’s life

meaningful,complete and worth living.

The scope of Art. 21 has been expanded over last 50 years and life and liberty now

includesRight to Good Health as well as Right to Wholesome Environment along with

various otherrights.2 The Supreme Court of India was one of the first Court to develop

the concept of Right to Healthy Environment as a part of the Right to Life under Article

21 of the Constitution.3

40
In Subhash Kumar v/s State of Bihar4 the Supreme Court held that Right to Life is

aFundamental Right under Art.21 of the Constitution and it include the Right to

enjoyment of Pollution Free Water and Air for full enjoyment of life. If anything

endangers or impairs that quality of life in derogation of laws a citizen has

recourse to

Art.32 of the Constitution for removing the pollution of water or air which may

bedetrimental to life.

The Supreme Court has invoked Art.21 to grant relief against the effect of

pollution inenvironmental matters5 from time to time. Protection of Right to

Health has an inextricable link with clean environment. Clean and healthy

environment is itself a Fundamental Right as held by the Supreme Court in the

case of M.C. Mehta v/s Union of India. 6

It is humbly submitted before this Hon’ble Supreme Court that,

• Burning of firecrackers causes pollution which affects all citizens

irrespectiveof their age. However, children are much more vulnerable to

air pollutants as exposure thereto may affect them in various ways

including aggravation of asthma, coughing, bronchitis, retarded nervous

system breakdown and even cognitive impairment.

• Manufacturing of firecrackers generates a lot of waste which adds to

pollutionas sufficient measures are not taken to deal with this waste.

Number of deathsas well as injuries to person are caused every year due

41
 to poor storage which results in occasional accidents, likewise the burning

of these crackers also results in injuries.

• Air Pollution hits its nadir i.e. worst stage during Diwali time because of

indiscriminate use of firecrackers, which causes increase in harmful

particulate matter such as PM2.5 and PM10 in the environment at an

alarminglevel causing situation of emergency. This has resulted in air

pollution going

up at alarming level. The Air pollution had gone up to 29 times above World
Health Organization (WHO) standards. Studies by C.P.C.B (Central PollutionControl Board)
had categorically found that burning of crackers during diwaliwas contributing to air as well
as noise pollution in an alarming manner.7

All of which was categorically relied upon in the recent judgment of Arjun

Gopaland others v/s Union of India and others8. Also in the said case, Hon’ble

SC haddirected the CPCB to study and prepare a report on the harmful effects

of the fireworks’. The CPCB in its report of October 2017 titled “Status of

Pollution Abatement Measures” had mentioned the following health hazards:

• The children breathe toxic air and suffer from nasal irritation and throat congestion.

• The smoke also irritates the eyes causing tears and redness.

• Bursting crackers may increase blood pressure and aggravate heart disease.

• Nausea, headache and giddiness are common effects of bursting crackers.

42
• Lung infections such as coughing, sneezing, respiratory disorders like asthma,

wheezingoften get severe during Deepawali festival.

Besides the above, lack of safety measures also cause serious accidents varying from

seriousburns and injuries to death in some cases.

Therefore it is humbly submitted before this Hon’be Court that the manufacturing and

bursting of firecrackers adversely affects the health as well as the environment and as

suchviolates the petitioner’s right to good health and right to wholesome environment,

both of which are enshrined under Art. 21 of the Constitution.

Issue 2

Whether the fundamental right to carry on business, trade or occupation

ofthe respondent enshrined under Article 19(1)(g) would be violated or not

if a ban is imposed on firecrackers?

It is humbly submitted before this Hon’ble Supreme Court that,

Article 19(1)(g) guarantees to all citizens the right to practise any profession or to carry

onany occupation, trade or business. However, reasonable restrictions can be imposed

43
on theuse of this right as mentioned Under Article 19 (6). The restrictions laid for right

in Article19(1)(g) as defined in Article 19(6) are that:

• State shall make any law imposing the rights provided under Article 19(g) in interest

of general public.

• Also State shall make any law relating to professional or technical qualifications

necessary for practicing a profession or carrying on any occupation, trade or

business,

• And also law in relation to creation of State Monopoly.

The phrase “in the interest of general public” is the main ingredient in Art 19(6)

and has come to be considered in several decisions. It has been held in various

cases that itwould include within its ambit interests like public health and

morality.9

The same was held in the case of Jan Mohammed Usmanbhai that it would

include“public health along with public order, public security and morals…”

The reports of the CPCB as relied in the case of Arjun Gopal and others v/s Union of

India and others11 specifically highlights the harmful effects of bursting of

firecrackers.It also enlists numerous ways as to how it is harmful to the general

public. It not only affects the environment but also impacts the health of public at

large.

44
 The bursting of firecrackers also endangers lives. Fireworks industry is a

hazardousindustry, from the place of manufacture, transportation and storage

of fireworks is arisk to life and property. The lack of safety measures also cause

serious accidents varying from serious burns and injuries to death in some cases

every year.

Therefore, it is humbly submitted before this Hon’ble Supreme Court

that, The manufacturing and bursting of fireworks is dangerous to life,

property,

environment and overall public health which is encompassed in the phrase “in
interest

of general public”.

Since the right to practice any profession, or to carry on any occupation, trade, or

businessunder Art. 19 (1)(g) is not absolute and reasonable restrictions can be imposed

“in interestof general public” that includes “public health”, therefore a ban on

firecrackers is a reasonable restriction and as such no right of the respondent to carry

on business, trade oroccupation of the respondent enshrined under Article 19(1)(g) is

violated by it.

PRAYER

In light of the legal precedents and principles cited; and in light of the provisions of

the Constitution applied and arguments advanced; and in light of the scientific

studies relating to the issue referred to, the Petitioners most humbly prayed that:

45
• The fundamental right to health and wholesome environment of the petitioner

enshrined under Article 21 has been violated.

iv) The fundamental right to carry on business, trade or occupation of the

respondent enshrined under Article 19(1)(g) would not be violated if a ban is

imposed on the firecrackers.

2. To prohibit bursting of firecrackers.

The Court may make any other such order as it may deem fit in terms of justice,
equityand good conscience.

And for this act of kindness the respondent shall as duty bound ever humbly pray.

Respectfully

SubmittedS/d

Counsel for Petitioner

46
 CASE ANALYSIS OF INDIRA NEHRU GANDHI V. RAJ
NARAIN

In the Supreme Court of India

Civil Appeal No: 887 and 909 of 1975

Citation:

1975 (Supplement) Supreme Court Cases 1

Appellants:

Smt. Indira Nehru Gandhi

Respondents:

Shri Raj Narain

Decided on:

November 7th, 1975

Bench:

Chief Justice A.N. Ray, Justice H.R. Khanna, Justice K.K Mathew. Justice Y.V. Chadrachud,
Justice M.H. Beg

INTRODUCTION

In the history of Indian Legal system, Indira Gandhi v. Raj Narain was a landmark judgement.
In the history of Independent India, It was the first time when elections of the President were
set aside. It was also the first time when the Kesavananda Bharti case was applied to struck
down the constitutional amendment. Indian legal system also faced the situation where election
laws were amended to legitimize the nullified elections of the Prime Minister.

47
 BACKGROUND OF THE CASE

In 1971, 5TH Lok Sabha General Elections were held in India. Raj Narain and Indira Gandhi
were the two contenders with a tough combat against each other for Rae Bareilly constituency.
When the Results were proclaimed, It was observed that Indira Gandhi won the Elections by
securing 352 seats out of 518 seats. The Result was distasteful for the Raj Narain as he was
very optimistic about winning the Elections with a huge margin. A Night before the Declaration
of results, Raj Narain even held a thrashing rally in the Constituency.

The Raj Narain, The Leader of Ram Manohar Lohias SSP striked out to raise voice against the
Indira Gandhi to nullify the Elections by filing a petition before High Court of Allahabad on
24TH April,1971. He professed that Indira Gandhi performed Election malpractices. He also
put allegation on Indira Gandhi that she has violated the election code which is mentioned in
Representation of People Act 1951. In his petition, He even purported that Indira Gandhi has
used government resources for election purposes and distributed blanket and liquor to the
Voters for influencing them.

On 12th June 1975, Justice Jagmohan Lal Sinha of High Court of Allahabad found Indira
Gandhi guilty of misusing government resources under sec 123(7) of Representation of people
act,1951. The High Court of Allahabad held that Indira Gandhi can not hold the Office of Prime
Minister, Furthe, she can not contest elections for another six years. The Indira Gandhi filed an
appeal against the decision. The Supreme Court during that time was on vacation so she was
granted a conditional stay.

Thereafter, The President Fakhrudeen Ali Ahmed declared an emergency due to internal
disturbances but the real decision took place because of the judgment of Raj Narain vs Uttar
Pradesh1.

On 11 August, 1975, The Supreme Court ordered both the Parties to appear before the Court
but on 10Th August 1975, The President passed the 39th constitutional amendment, which
introduced Article 392 A to The Constitution of India. Article 392 A States that, election of
Speaker and Prime Minister can not be questioned in any court of law, It can only be confronted
before a committee formed by Parliament itself. Thus, This put a bar on Supreme Court for

1 Raj Narain v. Uttar Pradesh (1975) A.I.R. 865

48
deciding Indira Gandhi case. Therefore, The Constitutional authenticity of 39 th amendment was
challenged in Indira Gandhi V. Raj Narain 2.

HEARING AT ALLAHABAD HIGH COURT

On 15th July 1971 hearing commenced in the Court of Justice B.N.Lokur. Raj Narain requested
the court to call of the Prime Minister before the court to despose and also to provide the govt.
documents so that court can take cognizance of them but his this request was rejected. Raj
Narain then turned to the Supreme Court where a 3 judge bench heard his appeal. The Case
continued in Allahabad High Court until 1974 when Indira Gandhi filed in the Supreme Court
that she requires a privilege to not to produce blue book as evidence in court.

The Bench of five judges of Supreme court granted her appeal by setasiding the order of High
Court to not to produce blue book as an evidence. They also directed that this particular case
shall be heard by single judge, Justice J.L. Sinha.

On 12th june 1975, A final verdict was given by the court charging Indira Gndhi to be guilty of
corrupt practices. The Court also stated that government facilities and officers were involved
in her campaign and she tried to influence the voters. The Judge that she will no more be a
member of Lok Sabha. Justice Sinha also granted the respondents stay for 20 days on the
verdict.

FACTS IN ISSUES

• This put a question on validity of clause 4 of Article 329 of The Constitution of India.
• This threw light on constitutional validity of Representation of People (Amendment)
Act, 1974
• This also raised a question whether the Election of Indira Gandhi was void or not?
• The Symbols of cow and calf which were used by Indira Gandhi was an appeal to hurt
the sentiments of people and has committed a corrupt practice under section123(3) of
Representation of People Act.
• It was also seen that quilts, blankets, dhotis which were distributed by the agent and
officers were distributed to induce the voters.

ARTICLE 392 A CLAUSE (4) AND ITS CONSTITUTIONAL VALIDITY

2
Indira Gandhi v. Raj Narain A.I.R.( 1975) S.C. 2299

49
 ➢ DOCTRINE OF BASIC STRUCTURE

Kesavananda Bharti Case is a landmark case where the Honble Supreme Court has laid down
Doctrine of the Basic structure. It held that “basic structure of the Constitution could not be
abrogated even by a constitutional amendment”.

The Judgement listed some basic structures of the constitution as:

1. Supremacy of the Constitution

2. Unity and sovereignty of India
3. Democratic and republican form of government
4. Federal character of the Constitution
5. Secular character of the Constitution
6. Separation of power
7. Individual freedom

Article 368 of the Constitution has given the power to the Parliament to amend the Constitution
by the ways of variation, repeal or addition of provision by procedure which is laid down and
which is different from the Ordinary legislation.

In this, The Honble Supreme Court applied the Doctrine of Basic structure laid down in the
Case Kesavananda Bharti Case3. The Supreme Court said that Article329 A Clause (4) need to
be struck down because It states that validity of election will not be debated and the Dispute
will not be governed by any election law. It also abolishes the Privilege and remedy to test
validity of elections. The Elections will be considered valid. So, This was affecting the Basic
structure of The Constitution.

STATUTES

1) Section 123(7) in The Representation of The People Act, 1951.

2) Article 329 (b) in The Constitution of India,1949
3) Article 368 in The Constitution of India,1949
4) Election Laws (Amendment) Act, 1975.
5) Representation of The People (Amendment) Act,1974

3 Kesavananda Bharti v. State of Kerala A.I.R.(.1973) S.C. 1461

50
Constitutional validity of Reprsentation of People (Amendment) Act 1975

Through the fact, it was seen that the 39th amendment was passed at time when many of
members of parliament were not present as they were arrested under the preventive detention.
The Judicial review and the separation of powers are part of basic structure which were
destroyed during the amendment. This amendment affected the notion of equality as there
should be no disparity between people who are elected to the parliament or people holding the
office.

Raj Narain was the one who opposed this and claimed that at the time when the 39th amendment
was passed, many opposition parties were not present to give their views or oppose therefore
the act is necessarily required to be struck down. The Court was of the opinion that this matter
is related to both the house of parliament and the court can not interfere.

In the matters questioning constitutional validity the statue depends entirely on the existence
of the legislative powers and the limitation laid down by Article 13, there is no other prohibition
and the Parliament had acted within the powers of Article 368 when it framed the election laws.
In addition to this, the Parliament has the powers to restrict the limits on election expenses
along with stating which expenses can fall under the purview of the same and which cannot. It
can likewise choose what is meant by the office of profit, what comes under corruption and the
status of the members. If there has been a retrospective effect to the legislative amendment, it
is accepted as a normal exercise which is tough to implement but is inevitable. In such cases,
wherein the law has a retrospective effect and if the law was operational in the past, there can
be no discrimination or unfairness on this ground of being retrospective in nature. 4

Was the election of Indira Gandhi valid?

The Supreme Court after observing the facts of this case referred that the section 123(7) of the
Peoples Representative (Amendment) Act, 1975 has the term Candidate, as the person who
files the nomination paper. The Supreme Court held that on 1st Feb, 1971, the nomination was
filed by Indira Gandhi. So, before this date, if any help or assistance is taken from the armed
forces or govt. officials will not be considered as corrupt practices.

4Indira Gandhi v. Raj Narain, , https://blog.ipleaders.in/emergency-indira-gandhi-v-raj-narain/ (last accessed

May 03,2020)

51
The Supreme Court also asserted in facts of Yashpal Kapoor where it was clear that on 13th
Jan, 1971 resignation letter was given by the President and it was acknowledged on 25 th Jan,
1971. The Yashpal Kapoor begin working under Indira Gandhi from 1 st Feb, 1971. So, the
assistance provided by him to Indira Gandhi was not a corrupt practice.

Raj Narain Also purported that Yashpal kapoor has given many speeches from 7 th Jan, 1971 to
25th Jan, 1971 to hold up Indira Gandhi. There were no sufficient sources which could tell about
Yashpal Kapoors intention to validate Indira Gandhi. The Courst also held by referring section
77 of the Peoples Reprsentative (Amendment) Act, 1951 that the expenses which are used for
the elections doesn’t comes under the election expenses of the candidate. Also, participating
the functions of activities organized by political party doesn’t comes under the election
expenses of the candidate.

CONTENTIONS

INDIRA GANDHI (PETITIONER)

The Learned Attorney General

• That in many countries, The Constitution leaves in the hands of legislature to provide
judgment on election dispute.
• That it is not the Matter of the Court to decide to what degree elections must be
negotiated by the Constitution and by the Legislation.
• That if the Composing body believes that offices of Prime Miniter are considerable
enough to be handled by the Parliament then it can not be considered as pointless.
• That the Majority decisions given in Kesavananda Bharti case can not be a domination
in this case if elections would be free and fair beyond Judicial review.
• That The Case referred i.e. Kesavananda Bharti Case and Shankari Prasad both didn’t
cover the Spheres of electoral dispute and mainly focused on the term AMENDMENT.
Thereupon, Constituent powers must be held absolute.
• There are many articles in the Constitution which states that The Judicial review can be
excluded in an appropriate cases as a matter of policy.

52
 • The Article 14 which is founded on a sound public policy perceived by all states. If The
Judicial review is excluded than it is doesn’t undo the Equality. It is clear from article
31 B, that denied equality on cross of it, but it comparatively brought economic progress
and justice to the Country.
• That Except under Article 14, Our constitution doesn’t recognize Doctrine of Equality
or Rule of Law. So Rule of Law is not a part of basic structure.
• That Judicial Review can be excluded permissibly where constitution doesn’t observe
Judicial Review.

RAJ NARAIN (RESPONDENT)

• The Respondent clearly relied on decision of Kesavananda Bharti case given by 7

judges bench and argued that the Amendment made is violative of basic features of
constitution.
• Since, The Assertion is valid or not is a legal exemption under Article 329 and 136
separately, The Contravened amendment impel to take away the Democratic structure
of nation.
• The Respondent relying from the Kesavananda Bharti Case contended that under the
Article 368 is only competent to lay down general principles administrating the organs
of the State.
• He also contended that when this amendment was passed a no. of opposition were
spitefully detained under Detention Act.
• He relied on the Article 14 of constitution and stated that it is violative because the 39 th
Amendment is unreasonable and doesn’t pass the Test of classification as to why the
Members must be classified holding higher/lower post.
• This amendment endagers the Rule of Law and Separation of Powers.

JUDGMENT

The amendment destroyed the election and the law relating to it; it took away a remedy from
the defeated party in the election and was as many call it a legislative judgment to the Indira
Election case and a direction to the Supreme Court to allow the appeal. Raj Narain filed a cross
appeal and challenged both the amendment to Representation of people Act and also the Thirty
Ninth Constitutional Amendment Act, 1975. The appeal was argued by both sides on the basis

53
that the case was governed by the majority in Keshavananda case i.e. the amendment power of
the government did not extend to the altering the Basic Structure of the constitution. The
grounds on which the challenge was based are as follows:

It is well known that Art. 329-A was added to the Constitution by 29th Amendment which
made the election of a person holding office of the Prime Minister to the Lok Sabha beyond
the authority of a law court including the Supreme Court and thereby aimed at providing
protection to Mrs. Indira Gandhi, the then Prime Minister whose election had been set-aside
by Allahabad High Court on a finding of prohibited corrupt practice committed by her.

The amendment was passed when several members of the Parliament were absent due to their
arrest under preventive detention. The amendment destroys Judicial Review, and also
Separation of Powers both of which form a part of the basic structure of the Constitution.
Art.368 does not give the parliament the power to decide a private dispute through an
amendment. Clause (4) of Art.324A is said to be in the exclusive domain of the Judiciary and
which is not included in the constituent power under Art.368. The amendment demolished the
notion of equality; there is no rational differentiation between persons holding high office and
persons elected to the Parliament. The ground of the constitution amendment being passed
without the presence of a lot of opposition members was not accepted by any of the judges.

The court through a majority i.e. Justice Khanna, Mathew, and Chandrachud held that Article
324(4) struck the Basic Structure and hence is liable to be struck down; the reasons on which
the judges reached this conclusion are varied. The court through majority also held the
amendment in election laws to be valid, and allowed the appeal of Mrs. Gandhi. Justice
Chandrachud in his judgment intensified on the theory of Separation of Powers being a part of
the Basic Structure of the Constitution, he held that the amending power under Art.368 does
not include legislative executive and judicial powers. Justice Mathew held that without a
judicial remedy elections would become a ridiculed. It would be difficult to decide as to who
has been legitimately elected and who has seized power. For the latter could then trample upon
the privileges and liberties of people. Justice Khanna held that free and fair elections are an
integral part of the Basic Structure of the Constitution and Art.324 (A) goes against the Basic
Structure, furthermore as Article 324(A) is not severable from the main Article the whole
article is to be struck down. Justice Beg and Chief Justice Ray did not categorically hold Art.
324(A) to be violative of the basic structure, but they disagreed with the amendment in spirit.
They held that free and fair elections did not form a part of the Basic Structure and that

54
constituent power given to the Parliament by Art.368 included legislative, executive and
judicial power. The case has the distinction of being the first case which is said to have been
decided using the newly propounded doctrine of Basic Structure. The case is also credited to
have broken new ground and had its effect on Keshavananda case.

CRITICAL ANALYSIS

This Case is a landmark case because the Supreme Court reminded the Parliament that the
Law will always uphold the Constitution. The Decision reminded the Parliament that
constitution is above all and Judiciary is there to save democracy from harmful actions of
Parliament. The Court in this landmark case sustained the principle of Separation of Powers
which shape check and balance between the Pillars so as to avoid encroachment and violation.
The Case upheld that Indira Gandhi , just to save herself from Allahabad High Court decision,
she passed the 39th Amendment and imposed the Emergency. However, Judiciary resolved this
crisis by withdrawing the Amendment passed and helding the Elections valid.

The Court in this case highlighted the Essence of Democracy i.e. Free and Fair elections. The
Supreme Court held that the country where the Citizens cant elect their representatives through
free and fair election is not an essence of democracy. The Court proved that Parliament is by
law and law is not by parliament. The Court however focused on parliament or Indira Gandhis
vicious amendment and made Rule of Law dominant.

According to the Facts found in this case, Prime Minister misused her power when she was
found guilty violating election laws. In this situation she should have resigned with the left
dignity but she imposed emergency to save herself. However, Judiciary handled the situation
and pulled back the 39th Constitutional Amendment which is violative of basic structure.

The 42nd Amendment Act, 1976 played an effective role which made the Challenge of
Amendments in court of law impossible (However this Amendment was struck down in
Minerva Mills5). The Parliament in its agony passed a law on Judiciary where the Court lost
the power to question and amendment of Constitution.

1)

5 Minerva Mills Ltd. & Ors v. Union of India A.I.R.(1980) S.C. (1789)

55
 KNOW MORE ABOUT THIS CASE

To get the inside details of this case a book has been published titled The Case that shook India
written by Prashant Bhushan who is the son of Shanti Bhushan, the lawyer arguing from Raj
Narains side. He has discussed the Nuisance created in a detailed manner .

SUGGESTIONS

Indira Gandhi was assisted by the government officers and has profiled the administration from
the military and the aviation based armed forces and amid her election battles. The Allahabad
High Court uprightly charged her under section 123(7) of the Peoples Representative Act,
1951.

Indira Gandhi took an unconditional stay order from justice Jagmohan Lal Sinha, and made an
appeal to the Supreme Court in the mean time she imposed emergency due to which she easily
got rid of the opposition members, censors, the press and suspended some fundamental rights
in the name of national security.

It was evident that the three amendments were made to expel all grounds on which Indira
Gandhi was found guilty in its judgment held that Amendment act, 1974 and 1975, were
constutionally real as they were administrative standards and the parliament had forced to
rationalize them, yet the Supreme Court failed to notice that these amendments were made for
the sole motive of removing the changes against the Indira Gandhi.

The Supreme Court was disregarded on its part to say that it was the matter of the parliament
and the Supreme Court couldn’t deal with such issue.

I realized that the Supreme Court was unmindful in managing this issue. The Indira Gandhi has
misused the powers in accordance to adjust the very law that changed her of being corrupt but
the Supreme court stayed silent and when the defendant claimed for equity, all that the Supreme
court could do was to give him long superfluous reasoning of how the issue was out of its
words.

It is clearly seen that the Honible Supreme court was well aware of the fact that the Indira
Gandhi had made the amendments to satisfy her political stratigies and had unconventionally
imposed emergency to save herself from being guilty. Yet, the Supreme court upheld the

56
constitution in some ways as it struck down 4 and 5 of article 329 being violative of the basic
structure.

REFERENCES

• Raj Narain v. Uttar Pradesh (1975) A.I.R. 865

• Indira Nehru Gandhi (Smt.) v. Raj Narain & Anr on 24 June,1975, (1975) AIR 1590,
(1975) SCC(2) 159
• Kesavananda Bharti v. State of Kerala A.I.R. (1971) SC 1461
• Minerva Mills Ltd. & Ors v. Union of India A.I.R.(1980) SC 1789
• Indira Gandhi v. Raj Narain, ,https://blog.ipleaders.in/emergency-indira-gandhi-v-raj-
narain/ (accessed May 03,2020)
• Golaknath v. State of Punjab, A.I.R. (1643), (1967) S.C.R. (2) 762
• Article 368(4), ,https://indiankanoon.org/doc/1929205/ ( assessed on 04 May,2020)
• Article 368 (5), ,https://indiankanoon.org/doc/252025/ ( assessed on 04 May,2020)
• Section 123(7) in The Representation of The People Act, 1951.
• Article 329 (b) in The Constitution of India,1949
• Article 368 in The Constitution of India,1949
• Election Laws (Amendment) Act, 1975.
• Representation of The People (Amendment) Act,1974

----------------------
----

JOGINDER KUMAR V. STATE OF U.P

CASE NUMBER

57
WP Crl. No. 9/1994

EQUIVALENT CITATION

1994 AIR 1349, 1994 SCC (4) 260

BENCH

M.N. VENKATACHALLIAH (CJ), S. MOHAN (J), A.S. ANAND (J)

DECIDED ON

25 April 1994

FACTS

3. The petitioner, a man of 28 years of age was enrolled as an advocate.

4. The Senior Superintendent of Police (SSP) of Ghaziabad called the petitioner in his
office for making enquiries in some case.
5. The petitioner on 7 Jan.1994 at about 10 o’clock appeared personally along with his
brothers Shri Mangeram Choudhary, Nahar Singh Yadav, Harinder Singh Tewatia, and
Amar Singh.
6. SSP kept the petitioner in his custody.
7. The brother of the petitioner made enquiries about the petitioner, but he was lied and
told that the petitioner will be released by the evening after making some enquiries in
connection with a case.
8. On 7 Jan.1994 at about 12.55 p.m., the brother of the petitioner sent a telegram to the
Chief Minister of U.P. in concern to his brother’s arrest regarding some criminal case and
also further insinuating that the petitioner has been shot dead in a fake encounter.
9. On the evening of 7 Jan 1994, it came to the knowledge that the petitioner was
detained in an illegal custody of the SHO of Mussoorie.
10. On 8 Jan. 1994, it was informed that the petitioner was kept in detention to make
further enquiries in some case. So far, the petitioner was not produced before the
Magistrate concerned. Instead, the relatives of the petitioner were directed by the SHO of
Mussoorie to approach the SSP of Ghaziabad for release of the petitioner.
11. On 9 Jan. 1994, in the evening when the brother of the petitioner along with some
relatives went to the Police station of Mussoorie to enquire about the well-being of his
brother, they found out that the petitioner had been taken to some destination which
remains undisclosed.
12. The police officers claimed that the advocate was released and there was no question
for detaining him as he was cooperating with them in some Abduction related matter.

ISSUE(S)

When can an arrest be made and on what grounds?

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JUDGMENT

Various provisions and reports were discussed in the Hon’ble Apex Court in detail. It was
stated that no arrest can be made as it is lawful for the police officer to do so. It was also
mentioned that the existence of the power to arrest is one thing while the justification for the
exercise of it is another. Hence, the police officer is needed to be able to justify the arrest
apart from his power to do so.

An incalculable harm can be caused to the reputation and self-esteem of a person in arrest and
detention in police lock-up. A person cannot be arrested merely on an allegation of
commission of an offence made against him in a routine manner. This would be wise of a
police officer in the interest of protection of the constitutional rights of a citizen and in his
own interest as well, that no arrest is made without reasonable satisfaction after some
investigation to find out the genuineness of a complaint. And denying a person of his liberty
is a serious issue.

The advocacy of the Police Commission reflects the constitutional connections of the
fundamental right to personal liberty and freedom. A person is not liable to get arrested
merely on the suspicion of complicity in an offence. There must be some satisfactory
justification in the opinion of the officer effecting the arrest that such arrest is necessary and
justified unless the crime is a heinous offence. Then, an arrest must be avoided if a police
officer issues a notice to a person to be present in the police station and not to leave the
Station without permission.

The rights are fundamental rights which are inherent in Articles 21 and 22(1) of the
Constitution. They are required to be recognized and meticulously safeguarded. For effective
enforcement of those fundamental rights, the Hon’ble Court issued the following guidelines:

v) An arrested person being held in custody is entitled to inform if he so requests to have

one friend, relative or other person who is known to him or likely to take an interest in his
welfare that he has been arrested and where he is being detained.
vi) The police officer shall inform the arrested person when he is brought to the police
station of this right.
vii) An entry shall be required to be made in the diary as to who was informed of the
arrest. These protections from Articles 21 and 22(1) must be enforced strictly.

It was further directed that it will be the duty of the Magistrate to satisfy himself with the
requirements before whom the arrested person is produced.

Judgment

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In the case of Joginder Kumar v. State of Uttar Pradesh, the Hon’ble Supreme Court held that
“No arrest can be made because it is lawful for the Police Officer to do so. The existence of the
power to arrest is one thing. The justification for the exercise of it is quite another. The Police
Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in
police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a
person. No arrest can be made in a routine manner on a mere allegation of commission of an
offence made against a person. It would be prudent for a Police Officer in the interest of
protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest
should be made without a reasonable satisfaction reached after some investigation as to the
genuineness and bonafides of a complaint and a reasonable belief both as to the person’s
complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious
matter. The recommendations of the Police Commission merely reflect the constitutional
concomitants of the fundamental right to personal liberty and freedom. A person is not liable
to arrest merely on the suspicion of complicity in an offence. There must be some reasonable
justification in the opinion of the Officer effecting the arrest that such arrest is necessary and
justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice
to a person to attend the Station House and not to leave Station without permission would do.”

It was further observed by the court that according to English laws, an arrested person holds
rights to inform someone about his arrest, upon request and also has the right to consult with a
lawyer of his choice. The apex court stated that these rights provided to an arrested person
vested in Articles 21 and 22(1) of the Indian Constitution and are required to be acknowledged
and safeguarded.

Thereafter, it was held by the apex court that “There is a right to have someone informed. That
right of the arrested person, upon request, to have someone informed and to consult privately
with a lawyer was recognised by Section 56(1) of the Police and Criminal Evidence Act 1984
in England. These rights are inherent in Articles 21 and 22(1) of the Constitution and require
to be recognised and scrupulously protected. For effective enforcement of these fundamental
rights, we issue the following requirements: 1) an arrested person being held in custody is
entitled, if he so requests to have one friend, relative or other person who is known to him or
likely to take an interest in his welfare told as far as is practicable that he has been arrested and
where is being detained. 2) The Police Officer shall inform the arrested person when he is
brought to the police station of this right. 3) An entry shall be required to be made in the Diary

60
as to who was informed of the arrest. These protections from power must be held to flow from
Articles 21 and 22(1) and enforced strictly. It shall be the duty of the Magistrate, before whom
the arrested person is produced, to satisfy himself that these requirements have complied with
the above requirements shall be followed in all cases of arrest till legal provisions are made in
this behalf. These requirements shall be in addition to the right of the arrested persons found in
the various police manuals.”

Therefore, the Constitution of India provides certain rights to an arrested person, as a

prerequisite to the Fundamental Rights provided to every citizen of the country. Article 21 and
22 establish the righteousness an arrested person holds in order to protect himself from any
illegal action against him in the process of arrest. Furthermore, the guidelines laid down in the
case of Joginder Kumar v. State of UP, were made mandatory for the Police to follow in case
of arrest to avoid dysfunctional activities on behalf of the administrative authorities and bring
uniformity in the crim procedure.

CLINT INTERVIEWING TECHNIQUES

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Client interviewing and counseling is the area where clinical method is better suited. Legal
education in India overlooked several aspects of a legal professional’s work, the most
important among them being Client interviewing and counseling.

Why are these two aspects more important than the other aspects such as representation of the
client? The lawyer and client relationship is first established during the interview and it is
after the counseling that the client would choose to hire the lawyer or seek some other.

Therefore, focusing on the first meeting point of the client and the lawyer is not only
necessary but also mandatory for an effective practice of law. Poor interpersonal skills of a
lawyer would result in incompetent representation of his/her client. Building interviewing and
counseling skills would enhance effective client representation and also in securing justice.
This course on interviewing and counseling is intended to build skills in factual investigation,
interviewing, counseling and resolving ethical issues. Details of the skills that are required
are given below

1. Skills of Factual Investigation include:

Collection of facts
Plan for factual investigation
Organizing and memorizing information
Evaluation of factual information
2. Skills of Interviewing include:
Skills of listening
Identifying and formulating legal issues
Knowledge of nature of legal rules and institutions
3. Counseling Skills include:
Gathering information relevant to the decision to be made for counselling
Analyzing the decision to be made
Counseling the client
Ascertaining and implementing the Client’s decision.
4. Skills for Resolving Ethical Dilemmas include:
Identifying the ethical issues
Understanding ethical standards
Process of recognizing and resolving ethical dilemmas

Elements of Interviewing
Interviewing is not simply confined to gathering of facts. It essentially involves
personal interaction in a professional context. Interviewing is not mechanical – it
involves persons and persons carry emotions. Therefore, interviews are often affected
by several factors such as interpersonal skills of the interviewer, psychological and
mental condition of the interviewed, and the physical environment of interviewing
(the place). The primary function of lawyer in interviewing is communication
function.

Communication Function of Interview:

62
Most important part of client interviewing is communication. Communication is the
cornerstone of developing relationship between the client and the lawyer. At every
level of legal representation, communication may either hamper or develop the
competent representation of a client. You learn about the client through interview and
you would be able to assess the problems and requirements of the client through
interview. To assess the problems faced by a client, you need to gather all required
information. This could be achieved only by establishing a good communication with
the client. Therefore, the communication function has the following three elements:
a) Building Trust and Rapport with the Client
b) Listening during the interview
c) Gathering facts and ascertaining the client’s problem and legal position.

Elements of Communication Function

a) Building Trust and Rapport with the Client Clients are human beings and they are
already having problems or at least they believe that they are in a problem
situation. That is why they approach you for your advice. Gathering information is
the primary task of interviewing. But information will not flow from the client
spontaneously. For example if the client comes to you with a sensitive problem,
he/she may feel shy to disclose personal problems. This is particularly so in cases
of sexual offences. So you need to build rapport with the client and thereby win
the trust of the client. Absence of trust and rapport with the client would severely
affect the revealing of relevant information by the client. It would be difficult to
obtain sensitive and personal information in such situations. Failure to get such
vital information may harm the outcome of the case. Consequently, if you fail to
focus on building trust and rapport with the client, you would not be in a position
to render effective professional service.
Method of building Trust and Rapport:
The next question is how to build the trust and how to develop rapport with the
client? The first step is that you need to concentrate on making the client
comfortable before conducting the interview. Making the client comfortable is a
continuous process. Various factors influence building a good relation with the
client. Following are some of the important factors:
How the advocate is dressed
The way the lawyer’s office is organised
The way the lawyer interacts
Keeping time
Proper listening
Showing genuineness and respect to the client
Explaining confidentiality at the initial stage
Providing privacy
As one’s outfit is said to be an external manifestation of one’s personality,
appropriate dress code would give the client a feeling of competent representation
by the lawyer. Systematic office organization would again indicate the
competency of the lawyer. Keeping time and having concern for the client would

63
 enhance the chances of building trust. Showing genuineness and respect to the
client is an essential ingredient of building rapport. The way you expect respect
from the client, client also expects respect from you. In fact the onus is on you to
convince the client about your competency.
Your need is to make the client believe that you really care about him and that you
are genuinely concerned about his problems. Creating privacy during interview is
a key factor for gathering all information from the client. Client would not be
willing to disclose his/her personal facts and feelings in the presence of others.
Therefore, during interview, you should avoid the presence of any other person. It
is ideal that no disturbance is caused during interviewing session. Particularly it
would be a good idea not to attend phone calls during interviewing.
To gain trust and develop rapport with the client, it is necessary for you to inform
the client in plain language that the facts disclosed in the interview is confidential
and the lawyer would not disclose it to anyone. In fact, it is better to explain to the
client the legal position that any communication made to you cannot be revealed
to any one, and that you are under the professional obligation not to disclose the
contents of the interview to any one without the permission of the client.
This information must be conveyed to the client in the beginning of the interview.
Disclosing confidentiality clause in the initial stage of interview would make the
client to reveal information which may affect the case or which the client thinks
may affect the case. The whole atmosphere during the interview should assure that
the communication to the lawyer would be kept confidential.

b) Listening during interview:

Interviewing is a two way process involving asking of questions as well as
listening to the client. Effective listening is as important as asking relevant
questions. Though many would claim that they know how to listen but in fact very
few are good listeners. It is true that listening is a very natural act, even newborn
babies listen, however though what many people do in reality is just hear.
Listening is a very powerful means of communication and also a way to persuade
people to talk. Listening is not the same as hearing. Listening makes you to
understand your client’s problem. Listening is nothing but understanding the other
person. How you listen is also as important as you listen. If you could demonstrate
that you are listening to the client, it would improve building rapport with the
client. Demonstrating listening does not mean concur with or appreciate whatever
the client has done. It means you should not ignore the client’s feelings at the
same time do not criticize the client what he/she had done or failed to do.
Methods of good listening: The following are some of the useful hints for
listening:
a) Pay full attention (stop all other activities while listening)
b) Respond to the client (it could verbal or non verbal like nodding head)
c) Show that you understand the client (narrating back to the client about his
problem in your own words)
d) Show empathy

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How do I listen effectively? There are three elements of effective listening:
1. Passive listening In the initial stage you allow the client to speak without many
interruptions. Why should I not ask too many questions in the beginning? Many
interruptions may stop the flow of the information. They may derail the thoughts
of the client. While the client is speaking, you may make non committal
acknowledgements like “Yes”, “Ok”, “I see” etc to continue the flow of the
speech and at the same time to demonstrate that you are actually listening.
2. Active listening
Unlike passive listening where the client would be allowed to speak without
interruption, in active listening you need to make some reflections about what is
said by the client. While making reflection, you are not judging the client but
merely acknowledging what the client says. For example you may convey back to
the client what he/she narrated to you. Narrating back to the client serves two
purposes. 1. It shows that you are not only listening but understanding what client
said. 2. Client would correct you if you miss anything or misunderstood anything.
3. Listening to the Body Language
In an interview both the lawyer and the client constantly communicate to each
other through body language. Body movements and gestures convey many things
such as anger, pleasure, confidence, distrust, evasiveness and a host of other
feelings and attitudes. As the saying goes “face is the index of the mind”, facial
expressions form very important part of communication.
Observing the client’s body language would give you an idea as to the reliability
of the client’s story. Many a times one may need to look at the body language to
ascertain whether what is verbally expressed is true or not. For example a client
who never looks at you indicates a severe state of total breakdown in trust, dislike,
extreme nervousness, psychiatric or physical illness or some combination of these.
None of them are good for fostering healthy professional relationship with the
client.
Similarly, your body language also communicates to the client. Therefore, you
must be conscious about his/her body language. You have to maintain eye contact
with the client. Confidence, genuine concern about the problem of the client and
empathy towards the client could be better communicated by body language. A
perfect body language of a lawyer would definitely reassure the client. As it was
discussed above, asking too many questions in the beginning may hamper the
flow of information but you need to ask questions to gather relevant information
from the client. Asking questions becomes particularly important if the client is
wayward in explaining his problem. If a client is shy in nature you may require
asking questions even at the initial stage to encourage the client to speak. So let us
concentrate on when to ask questions and what kind of questions you could ask
the client during the interview.

Questioning during Interview: Often the dilemma for the lawyer is what kind of
questions may be asked during interview and what would be the appropriate time
to ask such questions. Questioning may involve the potential risk of stopping the

65
flow of information. If questions are not asked then the client may not give
relevant information. Therefore, designing proper questions and deciding the time
when they should be asked is a serious challenge to the lawyer.

Kinds of Questions
Usually in an interview three types of questions may be asked.
1. Open ended questions
The main purpose of client interviewing is to encourage the free flow of
expression of the client’s problem, his/her concerns and feelings. Therefore,
you should allow the client to narrate his/her problem with least interference.
Too much interference may derail the thoughts of the client which may result
in breaking the flow of information. Open-ended questions give liberty to
provide the information without any break and it allows the client to give the
information the way he/she wants. Clients naturally will have the control over
the sequence of information.
Advantages of open ended questions
1. Allows the client to give information without any interruption
2.Encourages the client to give more information
3.Promotes empathy
4.They act as ventilators for expressing the feelings of the client
5.Minimizes inhibitions in communication.
6.Builds rapport

Disadvantages
1.Talkative clients and clients who are poor in differentiating relevant and
irrelevant information waste time.
2.Narration many not contain sufficient information
3.They may not stimulate the client’s memory.
4.They may cause discomfort to shy and reluctant clients (these kind of clients
needs be encouraged to give information)

When to Use
After weighing the advantages and disadvantages of open-ended question we
may conclude that if open ended questions are used in the beginning of the
interview, it will yield good result.

Examples of open-ended questions:

1.What is your problem?
2.What happened to you?
3.Why did you want to see me?
4.What do you want?
5.What help do you want?
6.Tell me more

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2. Narrow/specific questions
Gathering necessary facts is one of the important skills of a lawyer. Relevant
information is essential for effective representation. The information gathered
by open-ended questions only gives an overall idea about the problem of the
client. You are required to plug gaps in the information so gathered for
formulating the problem faced by the client and for theory development.
Further, the client may not give important information such as dates and the
place of incidents. Client also may not give information which he/she thinks
not important. Therefore, asking specific questions to collect such information
become necessary.
Advantages:
1.They guide the flow of information
2.They will help in motivating the client to give more information
3.They help the client to remember the details of the problem
4.They are good to get information from clients of shy nature
5.They are good at probing into details of a particular event
6.Helps in getting more information on specific area

Disadvantages
1.Limits the scope of information
2.If they are asked at an improper time, may adversely affect on development
of trust and rapport
3.If they are asked in the beginning of the interview it may restrict the flow of
information
4.Too many questions may create hostility in the mind of client

When to Use
Specific or narrow questions may be asked after the client has completed
his/her narration.

3. Leading questions
Leading questions means questions that contain the answer in them. Leading
questions as the name suggests, lead the client to the answer. You will be in
command in asking these questions. As these questions lead the answers they
must be asked with due care. These questions help you to confirm the details
already collected during the interview. They allow you to check the
authenticity of the information gathered from the client.
Advantages
1.They help in affirming or denying the information already in your
possession.
2.They are useful in eliciting information which the client is consciously
withholding. Why clients withhold information?
When a client comes to you for help why would the client withhold
information? Client may withhold information because:

67
1.The client may have thought that it may not be important or does not support
the case
2.The client had done something immoral/illegal
3.Or the client thinks that what he/she has done is immoral/illegal which
he/she thinks not wise to disclose.

Why should you know such facts?

To identify the legal problem you need all relevant facts. Client’s involvement
in the problem would many times define the legal problem. You should know
the complete story to evaluate the legal risk the client is facing or going to
face. Further, you need to know all the facts to avoid surprise when opposite
party makes a reference to it. It allows you to develop a possible defense when
the opposite lawyer makes a reference.
Disadvantages
1.It may embarrass the client
2.Sometimes if client is not sure of the answer he may pick up the answer
from the question
3.Too many leading questions may give an impression that the lawyer does
not trust the client
4.It has the potential of breaking mutual trust and confidence.

When to Use
Leading questions may be asked at the concluding stage of the interview.

Stages in Gathering Information. Gathering information in an interview could

be in three stages
1. Preliminary Problem Identification
At this stage you need to get an idea of what is the client’s perspective of
the problem and what legal relief the client is looking for. At this stage you
should encourage the client to narrate his problem with least interference
possible. When you are sure that the client has completed description of
problem, you may conclude the session by summarizing the problem and
the relief. The purpose of such summarization is to convey to the client
that you understood the problem and the relief the client is seeking.
Another advantage is that if you did not understand any particular fact or
misunderstood any fact, the client gets an opportunity to correct it. At this
stage you could ask open-ended questions.

2. Chronological Overview At the second stage you have to check the story
in a chronological order. This enhances your task of understanding the
problem of the client. At this stage you would gather facts that lead to the
event, facts immediately surrounding the event and facts following the
event. You could ask questions to fill the gaps left in the client’s narration.

68
 Asking specific questions at this stage would immensely help you to
comprehend the problem.

3. Theory development. After chronological overview of the problem, you

have to develop the theory i.e. giving name to the problem for example
that it is a case of theft, robbery or dacoity. Once the theory is developed
then apply the theory to the facts to check whether it fits with the facts
given by the client. While doing such an exercise, you may need more
information or sometimes need to check the client’s story. This becomes
necessary to decide the probable cause of action and the defenses
available. In such a case you would require to continue the interview. At
this stage leading questions could be asked. On the whole, interviewing is
maintaining a healthy relation with the client. Making the client
4.comfortable, actively listening to the client and asking the right questions at
the right time is the essence of interviewing

PRE-TRAIL PREPARATION

Pre-trial Preparation (Civil Case):

69
Pre-trial stage is a very crucial stage in any civil matter. Therefore Pre-trial preparations are an
important part of successful trial. If there is a good ground to work during preparation for trial
in proceeding to improve. Unless sufficient preparation is made even the best advocate may
not be sued during the trial.
General Rule of the trial is that it has to start the trial as per Order XVIII Rule 1 of Code of
Criminal Procedure. Pre-trial starts after Client Counselling is done and one decides to enter
into next phase and prepare for trial. Following steps are followed by Advocates and legal
practitioners including pre-trial preparations.

What is Pre-Trial Preparation?

Pre-trial Procedure includes all aspects of trial practice that occur before trial. These stages
include filing a lawsuit, answering a complaint, discovery, motion practice, and trial
preparation. There are many fine treatises and practice aids on pre-trial procedure, generally,
and on the various stages of pre-trial practice.

Importance of Pre-Trial Preparation:

As part of the pre-trial preparation process, it’s very convenient to get the opposing party to
stipulate to the admission of as many exhibits as possible. This avoids having to go through the
foundation process during trial, and provides the opportunity to have the exhibits marked into
evidence before the opening statement. Also, the pre-trial preparation process provides the
proper time for preparing motions. If opposing counsel will not agree to the motions, then file
them simultaneously with the pre-trial memorandum. If enough time exists during the pre-trial
conference, the judge likely will rule on most of the motions, especially if you have well briefed
the issues. In many, if not most, cases, both sides will agree to the jury instructions and verdict
form as part of the joint pre-trial memorandum process. This is very valuable in preparing the
case for trial.

Role of Lawyer in Pre-Trial Preparation:

Litigation attorneys, also known as litigators or trial lawyers, represent plaintiffs and
defendants in civil lawsuits. They manage all phases of the litigation from the investigation,
pleadings, and discovery through the pre-trial, trial, settlement, and appeal processes. Tasks
can vary based on the nature of the dispute, the experience of the attorney, and whether he's
representing the plaintiff or the defendant. In case of Pre-trial the weeks immediately preceding
trial are a time to wrap up discovery and prepare for court. Litigators consult with and advise
clients, retain expert witnesses, attend pre-trial conferences, and develop trial strategies based
on the facts and evidence. They might also conduct pre-trial depositions of experts and key
witnesses, prepare demonstrative evidence to be used as trial exhibits, and draft and argue pre-
trial motions such as those dealing with the admissibility of certain evidence at trial.

Stages in Pre-Trial Preparation:

Stage 1 – Presentation of a Plaint
Stage 2 – Issuance of Summons
Stage 3 – Filing of written statement
Stage 4 – Framing of issues
Stage 5 – Trial of case

Conclusion:
In civil trials, one person or party has reached the conclusion that their outstanding
disagreement or dispute with another individual or entity can no longer be resolved through
informal damage plea bargaining without the intervention of the judicial system and a civil

70
trial. To initiate the process of a civil trial, individuals are required to file a complaint within
the court of appropriate jurisdiction. Jurisdiction is determined by assessing whether the court
receiving the complaint has power over a defendant and whether the property involved in a
dispute is within the given jurisdiction. Filing a complaint in the wrong jurisdiction leaves the
courts no choice, but to decline to rule or even hear the case until filed in the correct jurisdiction.
A petitioner for the plaintiff, generally an attorney, will file the complaint in the correct
jurisdiction, along with a motion requesting the admission of evidence to plaintiff's complaint
claims.

Pre-trial Preparation (Criminal Case):

Criminal Procedure Code can be divided into three parts, with reference to the stage of
proceedings it deals with, which are, the pre-trial stage, the trial stage and the post-trial stage.
A fundamental portion of the Criminal Procedure Code deals with the pre-trial stage which
may be referred to the investigation.

Investigation includes every documentation, search, collection of evidence, recording of

statements of every person related, including the victim, the accused, the witnesses, the alibis
and others so related

The pre-trial procedure:

The whole of the pre-trial procedure is stated in the part-XII of the Criminal Procedure Code
from section 154 to section 176. These sections are to outline the basic procedure and actions
to be taken by the investigative officers during the investigation of the offence. These sections
are supplemented by other sections of the Code which provide for the procedure to acquire
evidence, record statements and file warrants. Jessica lal murder case an excellent example to
witness the function of each provision found within the pre-trial provisions..

The pre-trial phase of a criminal proceeding starts with the filing of the first information report
(FIR) and ends with the filing of the chargesheet with the Magistrate if the investigation
conducted has convinced the investigating officer to bring the matter to trial. We shall now
delve into this pre-trial phase by analysing the various steps which lead to the filing of the
chargesheet.

First Information of the offence

The procedure of investigation starts on the investigation officer receiving information about
the alleged commission of an offence. The first information that is received and recorded is
known as the F.I.R. (First Information Report). Every information given to the police
whether oral or written must be recorded into the general diary, a book kept at the Police station.
If the first information is received via the telephonic or oral method, i.e, the person comes into
the police station and narrates the commission of the offence, it should be reduced to writing
and must be read to the person providing it. Such a complaint given by statement and reduced
to writing is colloquially called Fard Bayan on the basis of which the FIR is registered. The
Code provides that an FIR filed by a woman with respect to certain offences against women
must be recorded by a woman police officer only.
In the case of a cognizable offence (offences of a lesser gravity and generally punished with a
period of imprisonment of less than 3 years), the FIR has to be registered before any
investigation on the matter can commence. This was further stated by the High Court of

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Calcutta in the case of Tapan Kumar. Therefore, whether with cognizable offences or non-
cognizable offences, the FIR is the founding stone to the initiation of any investigation.
An interesting proposition arose in the Jessica lal murder case with respect to deciding which
communication should be considered to be the FIR. The court observed that there were three
communications made to police at three different times and one of them was made to the police
at the hospital, where Jessica Lal was declared dead, by a Mr. Shyam Munshi after which the
FIR was registered. The question that arose was, which communication among the three should
be considered as the first information?
The court held that the information received by Shyam Munshi at the hospital must be
considered as the first information of the offence, as the other two communications were
telephonic and hence were confusing in nature.

So the first information that reveals sufficient information on an alleged commission of an

offence is considered to be the first initial information.

Police investigation

Once a FIR has been filed, a Investigating Officer can commence investigation on the matter
which takes form in the following ways,

Examination of witnesses

The investigation starts with recording the statements of the victims and the witnesses of the
alleged incident (if any). This is called the examination of witnesses.
The FIR provides the initial information about the offence, the statements of the people
concerned provides a deeper insight into the sequence in which the offence was committed or
the whole story of the offence that occurred.

For instance,

‘A’ calls to the police station and reports a theft happened in his house, that is the initial
information of the offence. After the FIR is registered on the basis of the information provided
by ‘A’, Investigation starts and the investigating officer asks ‘B’ about any information
regarding the incident or of the day of the incident, those statements which will be provided by
‘B’ will be recorded as statements or witness examination statements under section 161 of the
Code.

Any statement or information provided by the person under the examination of section 161 is
not admissible in the court of law. Sub-section 2 of section 161, provides the power to the
person being examined to refrain from giving any information which can result in self-
incrimination. The same is safeguarded as a fundamental right provided under Article 20 sub-
clause 3.

Search for evidence

During an investigation, the investigating team is required to collect evidence to support or
deny the charges that have been made in the FIR, power for conducting a search is provided
by Section 165 of the CrPC, 1973. This section is supported by section 93 which defines when
a search warrant may be issued. For every evidence/document that the investigating team
seizes, they are obligated to produce a seizure memo recording and indicating all the items they

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have collected from the search location. All the evidence that is seized by the investigating
team is to be approved and be original and not fake copies or fabricated by any person
concerned with the case.
Evidence is an object or document which gives light to a fact, for example, in case of a murder,
the murder weapon, the CCTV footage (if any), etc. and all the evidences are adimissibe in the
court of law, unlike the witness examination statements taken by during the investigation by
the investigation officer under section 161.

One of those type of evidence is Confession statement (if any), which just like the statement
provided under section 161 to the investigation officer, but the difference between the two
statements is that, firstly, the confession statement is provided in front of a Magistrate and not
a police officer; secondly, this statement so provided by a person in front of a magistrate is
admissible in the court, unlike the statements provided under section 161. A confession
statement does not mean a statement in which a person accepts the alleged crime on which the
trial and investigation is conducted. A confession statement means, any statement that reveals
a new material fact regarding the case.

Arrest of accused or suspect

The investigation that is conducted by the police is done on the information provided by the
witnesses, victim and the accused. On the basis of the investigation, the arrest of the accused
is made if circumstances provided by the Code require the same.

In some cases the accused can be arrested right after the registration of the FIR, but for that
there is a protection provided to accused under section 57 “person arrested not to be detained
more than twenty-four hour”, means that any person whether accused or suspect who is
arrested by the investigating team, cannot be detained for more than 24hrs, until there is a
special order by the magistrate11 confirming said arrest. These 24 hours are excluding the time
of travel from the station to the magistrate.
Arrests are made by the investigating officer under the power provided by the court of law by
issuing the arrest warrant under section 70. The person arrested by the investigation on a
warrant must be produced in front of the magistrate as soon as the arrest is made, and the delay
in bringing the arrested person in front of the magistrate cannot exceed twenty-four hours as
per section 73 of the Criminal Procedure Code,1973.
In some cases when the person against whom an arrest warrant is issued, absconds or conceals
himself/herself so that the warrant cannot be executed, the court can issue a proclamation/order
against that person requiring him/her to appear at a place and time specified by the court of
law.

Charge sheet or Final report:

Preparation of the charge sheet is the final step in the process of investigation in which the
Investigating Officer reports about every finding he made during the investigation, the arrested
suspect and what is the evidence collected during statements taken from the Victim, the accused
and the witnesses. The charge sheet is the final document prepared by the investigating officer.
This document describes the detailed steps that were taken by the IO during the investigation.
Submission of the charge sheet to the magistrate is done by a superior officer, who is appointed
by the state government by general or special order15.
Charge sheet is the report on the basis of which the magistrate concerned would be taking
cognizance of the offence, and by doing so, will be acknowledging whether the trial against
the alleged accused of the offence should be conducted or not. A charge sheet has to be
submitted within the period of 90 days from the registration of the FIR. If the investigating

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officer is unable to complete the investigation of the offence because of some important
testimonial evidence, he/she has the power to submit the charge sheet without that evidence
and can re-submit a supplementary charge sheet with that evidence to be considered in the case.

Right of an Accused person pre-trial

Every person has rights that protect him/her from getting violated during any process.
Similarly, an accused person also has some rights provided to him/her by the law so he/she can
protect themselves and the right from getting violated by the police or during the investigation
process. Those rights are as follows:

1. Right to know about the accusations and offence he/she has been charged under.
2. Right against wrongful arrest.
3. Right of privacy and protection against unlawful search.
4. Right of self -incrimination.
5. Right against double jeopardy.
6. Right against the ex-post facto law or retrospective effect of law.
7. Right to bail.
8. Right to legal aid.
9. Right to a free and fair trial.

Conclusion
The pre-trial procedure is the first action that has taken place against the offence that has alleged
occurred. An investigation is the most crucial part of any trial, because if the investigation is
faulty, the whole trial will be limited on those grounds.

The investigation is supposed to happen in the light of the procedure that has been established
by the law. This procedure established protects our right to fair trial in the court of law. Every
stage of the procedure steps towards confirming or discharging the accusations on the person
allegedly accused.

In cases where the summons are not complied with or serious offences, the court issues a
warrant in the prescribed form. Just like summons, the warrant is also made in writing, sealed
and signed by the Court. If the accused tries to abscond and avoids warrants, the Court can
issue a proclamation, giving a person a final chance to appear before the Court. If the Court
seems necessary it can also attach the property of the person proclaimed.

With all the hard procedure and structure following the law has provided many rights for the
persons involved in the pre-trial process and mainly for the accused. As, the accused is the one
that has a lot of rights about to get violated.

CHAMBER VISIT(Adv. Ajit Kenjale)

The virtual visit to a Lawyers chamber was held on 18th September, 2021 at 2:30 pm for a batch
of 60 students.

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We virtually visited the office of Advocate Ajit Kenjale . Our Professor Dr.Ashish Borse sir
introduced Adv Ajit to us. Adv. Ajit Kenjale has been practicing civil and criminal trials and
cases independently in the Bombay High Court for a significant period of approximately ten
years now.

Advocate Ajit Kenjale welcomed us very warmly.

We had an interaction with him not on a particular topic but various general issues in legal field
which gave us guidance and insight of how the legal profession works in the real world.

Among the various topics, I am depicting the following:

1) Law as a career option- prepare yourself:

To begin with, Adv. Ajit informed us about the categories of lawyers: litigating lawyers
and transactional lawyers. Adv. Ajit then pointed out that the first step towards success
in any career is to- dream big. A person can achieve something only if he dreams big
and of course, the dream has to be supported by his actions. It is imperative to be
passionate about pursuing the dream.

The next step in achieving the goal is to gain knowledge. Adv. Ajit recommended and
encouraged us to read text books and reference books on the subjects and fields of our
interest to facilitate impregnation of knowledge. With adequate knowledge, one may
counter any challenge that may occur in our professional lives. The power of knowledge
will automatically make way for inception of self confidence, which is paramount in
practicing any profession.
Another virtue, which is mandatory in the legal profession is the art of public speaking.
Fortunately, this srt can be developed by an individual by proper training and practice.
Moving to the specifics of legal career, Adv. Ajit pointed out that there are primarily
two types of knowledge viz. knowledge of fact and knowledge of law.
To summarize, a lawyer needs an armoury of four virtues viz. knowledge, presentation
skills, hardwork and language plus writing skills. It is vital that a lawyer be well
informed of the latest happenings relevant to the chosen line of work. Adv. Ajit also
reiterated the ethical principles as had been taught earlier and advised us to maintain
high standards of the bar when we go into practice including respecting judges, seniors,
colleagues, opponent advocates, client and opponent.

2) Vast varieties of career opportunities available:

Adv. Ajit briefed us about how this profession is a career that builds leaders. The
ambition to enter the legal profession is usually drawn from inspiration. The legal
profession looks attractive enough, but what kind of a person would make a good
lawyer. Good communication skills oral and written, a lawyer must also be fond of
reading because you will need to be good at research to be effective at your job. The
most important skill you need to have is logical reasoning. You should be able to look
at matters objectively and come to your own conclusions. If one is smart, presentable

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 and knows how to voice their opinion, law is a good career one should definitely
consider.

3) Opportunity knocking:
Adv. Ajit talked to us about how the role of a lawyer in today’s era has completely
evolved. Lawyers are the most sought after people by corporations and individuals,
leaving a dearth of lawyers when looked up against the demand. As law incorporates
diverse fields such as litigation, media, IP, academics, it now opens various options for
law graduates.

4) Litigation:
The traditional career path is to practice law in the courts. But Adv. Ajit made us
understand that it Is essential for any fresh graduate to always learn the ropes under a
Senior Counsel first. He also shared with us his own experience of working under a
senior counsel and how it helped and shaped his experience and skills.

5) Various other opportunities like corporate counsel, social work, judicial services, civil
services, legal process outsourcing, academia, judicial clerkship, media and law were
briefly discussed.

Adv. Ajit Kenjale then gave us a virtual tour of his chamber. It was a very well maintained and
one storeyed chamber having adequate space for storage of sorted files and various law books.
The chamber also had distinguished cabin for the lawyer and a separate cabin for his colleagues
and interns and other office staff. The chamber was well equipped with desktops and laptops.
Adv. Ajit then showed us how all the files of the cases he was working on were sorted and
stored in different compartments and shelves for proper and easy access. He advised us as well
that whenever we start our practice, we should also have the habit of maintaining case wise
files for every matter so that it comes handy. He also advised us to maintain own notes for our
reference whenever dealing with a case.

Adv. Ajit Kenjale then gave us a few tips about how one should approach and respond to a
client, what should be some basic pre trial prep, etc.

At the end of the session, the visit was opened for questions from students. Adv. Ajit Kenjale
very openly took all the queries and doubts from us. Few of the questions asked by students
were: Which was the most memorable case that Sir had worked on?, How should a lawyer deal
while recovering his costs from the client?, Post graduation in law, how can one actually enter
the professional world?, How does a lawyer overcome an ethical crisis when a mismatch
between his profession and personal beliefs occurs? Etc. Adv. Ajit gave us a great insight by
answering these questions that we as students most commonly have.

Adv. Ajit Kenjale concluded the session by briefing the students about the challenges faced by
lawyers and how we should face them with strength, dedication and persistence. The students

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and our Professor Dr.Ashish Borse thanked Adv. Ajit Kenjale for his time and all the value
addition in our knowledge that we got from the chamber visit.

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