memorials

____________________________________________
IN THE HON’BLE SUPREME COURT

IN THE MATTER OF:

TIMES TUBE BROADCASTING
COMPANY LTD................................................................................APPELLANTS
v.
P.B.AMRIT......................................................................................RESPONDENTS

MOST RESPECTFULLY SUBMITTED

TEAM CODE: _______

COUNSELS APPEARING ON BEHALF OF APPELLANTS

THE 5th Amity National Moot Court Competition, 2012
22nd to 24th MARCH 2012

TABLE OF CONTENTS

Index of Authorities
1. Books……………………………………………………………....3
2. Table of Cases……………………………………………………...4
Statement of Jurisdiction ……………………………………….………..9
List of Abbreviations ……………………………………………..….….10
Statement of Facts………………………………………………………..11
Statement of Issues…………….…………………………...………….....12
Summary of Arguments Advanced …………………………………….14
Arguments Advanced
1. That Special Leave Petition under Article 136 to the Supreme Court is maintainable…………………………………………………….16
2. That orders of Subordinate Court and High Court have resulted in breach of Natural Justice………………………………………….19
3. That Company can claim Fundamental Right under Article 19(1)(a) of the Constitution of India……………………………………….21
4. That Company cannot be held criminally liable for offence of defamation………………………………………………………...23
Prayer……………………………………………………………………..25

INDEX OF AUTHORITIES

BOOKS

Basu,D.D., A.R.Lakshmanan, V.R. Manohar, and B.P.Bannerji, “Shorter Constitution of India Volume I”, 14th Ed. Reprint Vol.I 2011, LexisNexis Butterworths Wadhwa, Nagpur.

Basu,D.D., A.R.Lakshmanan, V.R. Manohar, and B.P.Bannerji, “Shorter Constitution of India Volume II”, 14th Ed. Reprint Vol.I 2011, LexisNexis Butterworths Wadhwa, Nagpur.

Jain,M.P., Ruma Pal, Samaraditya Pal, “Indian Constitutional Law”, Sixth Ed. Rep. 2012, LexisNexis Butterworths Wadhwa, Nagpur.

Bakshi,P.M., “The Constitution of India”, 10th Ed. Reprint 2011, Universal Law Publishing Co. Pvt. Ltd., New Delhi

Ratanlal Ranchhoddas, Dhirajlal Keshavlal Thakore, Y.V.Chandrachud, V.R.Manohar, Avtar Singh, “The Indian Penal Code”, 30th Ed. Reprint 2010, LexisNexis Butterworths Wadhwa, Nagpur.

Ratanlal Ranchhoddas, Dhirajlal Keshavlal Thakore, Y.V.Chandrachud, V.R.Manohar, Avtar Singh, O.P.Srivastava, “The Indian Penal Code” 32th eds. Reprint 2011 Enlarged Ed., on Wider Formt, LexisNexis Butterworths Wadhwa, Nagpur.

Massey,I.P., “Administrative Law” 7th Ed. 2008, Eastern Book Company, Lucknow.

Ratanlal Ranchhoddas, Dhirajlal Keshavlal Thakore, Guru Prasanna Singh, “The Law of Torts”, 25th Ed. Reprnt 2010, LexisNexis Butterworths Wadhwa, Nagpur.

TABLE OF CASES

A.R.Antulay v. R.S.Nayak (1988) 2 SCC 602…………………………………………..20
Ajai Goswami v. Union of India, AIR 2007 SC 493…………………………..………24
Ajit Singh v. State of Punjab, AIR 1967 SC 856 : 1967 (2) SCR 143……...………..16
Alexander Machinery (Dudley) Ltd. v. Crabtree 1974 ICR 120…………….………19 Anath Bandhu v. Corporation of Calcutta, AIR 1952 Cal 759……………………...24
Arundhati Roy, In re, (2002) 3 SCC 343,373-74 (para 30): AIR 2002 SC 1375………………………………………………………………………………………….21
Ashok Nagar Welfare Association v. R.K. Sharma , (2002) 1 SCC 749, 756 (para 12) : AIR 2002 SC 335…………………………………………………………………….16
Assistant Commissioner, Commercial Tax Department, Works Contract & Leasing, Kota v. M/s Shukla & Brothers Civil Appeal 3289 of 2010 (@ SLP (C) NO. 16466 OF 2009)……………………………………………………………………………………19
Baldota Bros. v. Libra Mining Works AIR 1961 SC 100……………………………..16
Bhagat Ram v. State of Himachal Pradesh AIR 1983 SC 454…………………….…20
BHEL v. Kamal Kar Matar, (2002) 9 SCC 661 (para. 2) : (2001) 3 SLT 720…….18
Bisheswar Nath Mehrotra v. State of West Bengal, AIR 1956 Cal 137 : 60 CWN 305…………………………………………………………………………………………...24
Board of Secondary Education, Manipur v. C.W.Leiyachan, (2001) 10 SCC 42 (para. 2)…………… ……………………………………………………………………….18
Coimbatore Distt., central co-op. Bank v. Employees’ Assn. (2007) 4 SCC 696…………………………………………………………………………………………...20 D.C. & G.M. v. Union of India AIR 1983 SC 937…………………………………….22
Dhakeswari Cotton Mills v. Commissioner of Income Tax, (1955) 1 SCR 941 : AIR 1955 SC 65………………………………………………………………………………….16
Dhariwal Industries Ltd. v. M.S.S. Food Products, (2005) 3 SCC 63, 69 (para. 10) : AIR 2005 SC 1999…………………………………………………………….…………18
Divine Retreat Centre v. State of Kerela (2008) 3 SCC 542, at pg. 565 : AIR 2008 SC 1614…………………………………………………………………………………..…17
Divisional Forest Officer v. Bishwanath Tea Co. Ltd, AIR 1982 SC 1368 : (1981) 3 SCC 238……………………………………………………………………………………..22
Esher Singh v. State of A.P. (2004) 11 SCC 585, 602-03(para. 29)………….…….16
Express Newspapers Ltd v. Union of India AIR 1958 SC 578(614):1959 SCR 12…………………………………………………………………………………………….21
Govt. Branch Press v. D.B.Belliappa AIR 1979 SC 429. ……………………………19
Haripada Dey v. State of West Bengal, AIR 1956 SC 757 : 1956 SCR 639……….17
Hem Raj v. State of Ajmer, 1954 SCR 1133: AIR 1954 SC 462………………….….17
I.E. Newspaper v. Union of India AIR 1986 SC515 (paras 42ff.) : (1985) 1 SCC 641…………………………………………………………………………………………...21
Justice Hormusji Wadia v. Board of Trustees, Port of Mumbai AIR 2004 SC 1815………………………………………………………………………………………….16
M.P. Narayana Pillai and others v. M.P. Chacko and another, 1986 Cr. LJ 2002 (Kerala)………………………………………………………………………….…………24
Mahadayal Premchandra v.C.T.O., AIR 1958 SC 667: 1959 SCR 551…………….16
Mahesh v. Delhi, (1991) Cr LJ 439……………………………………………………..17
Maneka Gandhi v. Union of India AIR 1970 SC 150………………………………...19
National Chemical Organic Industries Ltd. v. Miheer H. Mafatlal, (2004) 12 SCC 356,359 : AIR 2004 SC 3933……………………………………………………………..17
Nawabkhan v. State of Gujarat AIR 1974 SC 1471………………………………...…20
Panchanan Mishra v. Digambar Mishra (2005) 3 SCC 143 : AIR 2005 SC 1299……………………………………………………………………………………..…..17
People’s Union for Civil Liberties v. Union of India (2004) 2 SCC 476: AIR 2004 SC 1442………………………………………………………………………………………….22
Pritam Singh v. State, AIR 1950 SC 169 : 1950 SCR 453…………………………...17
Pritam Singh v. The State, (1950) SCR 453: AIR 1950 SC 169…………………..…17
Ram Jag v. State of Uttar Pradesh, AIR 1974 SC 606 : (1974) 4 SCC 201……….................................................................................................................17
Ravi S. Naik v. Union of India, 1994 Supp (2) SCC 641…………………………....20
Sadhu Singh Harnam Singh v. State of Pepsu, AIR 1954 SC 271: 1954 Crl. LJ 727………………………………………………………………………………………..….17
Sadhu Singh v. Pepsu , AIR 1954 SC 271 : 1954 Cr LJ 727…………………………17
Sakal Papers v. Unnion of India AIR 1962 SC 305……………………………….…..21
Santosh v. Mul Singh, AIR 1958 SC 321 : 1958 SCR 1211………………………....16
Shri Vijay Vishwanath Kuvalekar vs Shri Suresh Raghunathrao 2000 (5) Bom CR 402…………………………………………………………………………………………...23
Siemmens Engg. & Mfg. Co. v. Union of India AIR 1976 SC 1785…………………19
Star India P. Ltd v. The Telecom Regulatory Authority of India, 146 (2008)DLT 455…………………………………………………………………………………………...22
State of Bombay v. Rusy Mistry AIR 1960 SC 391…………………………………….16
State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 86: AIR 1992 SC 840…………………………………………………………………………………………...17
State of Uttar Pradesh v. Anil Singh, AIR 1988 SC 1998: 1988 Supp SCC 686…………………………………………………………………………………………17
State of Uttar Pradesh v. Ballabh Das , AIR 1985 SC 1384 : (1985) 3 SCC 703…………………………………………………………………………………………...17
State of Uttar Pradesh v. Manish Dwivedi, (2001) 6 SCC763 (para. 3) :AIR 2001 SC 3750………………………………………………………………………………..……17
State of Uttar Pradesh v. Pheru Singh, AIR 1989 SC 1205: 1989 Supp (1) SCC 288…………………………………………………………………………………………...17
State of Uttar Pradesh v. Ram Swarup, AIR 1988SC 1028: 1988 Supp SCC 262…………………………………………………………………………………………...17
Sunilakhya v. H.M. Jadwet, AIR 1968 Cal 166 : 1968 CrLJ 736 (740)………...23,24
Syed Yakoob v. Radhakrishnan, AIR 1964 SC 477 : 1964 (5) SCR 64……..………16
Union of India v.Moduluft Ltd., (2003) 6 SCC 65, 71 (para. 14 ): AIR 2003 SC 2218…………….……………………………………………………………………………18
Virendra v. State of Punjab AIR 1957 SC 896:1958 SCR 308………………………21

STATEMENT OF JURISDICTION

The Appellants humbly approach the Supreme Court under Article 136 invoking the Jurisdiction of the Court to Issue Directions or Orders under Article 136 of the Constitution of India.
LIST OF ABBREVIATIONS

AIR
All India Reporter
Cri LJ
Criminal Law Journal
Ed.
Edition
JT
Judgement Today
Para.
Paragraph
Pg.
Page Number
SCC
Supreme Court Cases
SCR
Supreme Court Reporter

STATEMENT OF FACTS

1. Times Tube, an English News Channel owned by Times Tube Broadcasting Co. Ltd, in its one of its news broadcast on September 10, 2008 at 06:30 P.M. ran a story on multi-crore provident fund scam.

2. While mentioning the name of Justice P.K.Amritya, who is sitting judge of High Court, for his alleged involvement in provident fund scam, the channel displayed the picture of retired Supreme court Judge P.B.Amrit, who was also former Chairman of Press Board of India, for 15 seconds.

3. Justice Amrit proceeded against the Times Tube Broadcasting Co. Ltd. for civil and criminal liability for his online defamation. The district court awarded Justice Amrit Rs 100 crores as damages. Aggrieved by the decision company appealed to High Court, which passed an interim order to deposit Rs100 crore (Rs 20 cores in cash and a bank guarantee for Rs 80 crores) with High Court Registrar as a pre-condition for hearing appeal.

4. Finally, Time Tube Broadcasting Co. Ltd. has approached the Supreme Court by way of Special Leave Petition under Art.136 of the Indian Constitution.

STATEMENT OF ISSUES

I. Whether Special Leave Petition under Article 136 to Supreme Court is maintainable?
1. Whether appeal under Article 136 can be maintained in exceptional cases?
2. Whether appeal under Article 136 can be maintained in cases of breach of natural justice?
3. Is appeal under Article 136 against interim orders is maintainable?
4. Whether appeal under Article 136 can be maintainable when order is maintainable?

II. Whether decision of Subordinate Court and High Court violated the principle of principle of Natural Justice?
1. Whether requirement of giving reasons for decisions is implied in principles of natural justice?
2. Whether orders given in violation of principle of “audi altrem partem” are void?
3. Whether orders must follow the doctrine of proportionality?

III. Whether Company can claim the Fundamental Right under Article 19(1)(a) of the Indian Constitution?
1. Whether Freedom of Press is implicit in Fundamental Right enshrined under Article 19(1)(a) of the Indian Constitution?
2. Whether a company can challenge violation of Fundamental Right under Article 19(1)(a) of the Indian Constitution?

IV. Whether a company can be held liable for offence defined under Section 499 of the Indian Penal Code?
1. Whether intention is necessary for offence under Section 499 of Indian Penal Code?
2. Whether company is capable of forming intention?

SUMMARY OF ARGUMENTS ADVANCED

I. That Special Leave Petition under Article 136 to the Supreme Court is maintainable.
1. That Supreme Court can grant special leave to appeal to Times Tube Broadcasting Company.
2. That special leave petition against interim order maintainable.

II. That orders of Subordinate Court and High Court have resulted in breach of Natural Justice.
1. That the reasons for the decision must be given.
2. That order passed in violation of natural justice is void.
3. That decision of sub-ordinate court is in violation of Doctrine of Proportionality.

III. That Company can claim Fundamental Right under Article 19(1)(a) of the Constitution of India.
1. That freedom of press implicit under Article 19(1) (a) guarantying freedom of speech and expression.
2. That a company can challenge the violation of its Fundamental Rights under Article 19 of the Constitution of India.

IV. That Company cannot be held criminally liable for offence of defamation.
1. That intention is necessary for the offence of defamation under Section 499 of Indian Penal Code.
2. That a company cannot be held criminally liable for the offence of defamation.
3. That decision must be given after viewing publication as a whole.

ARGUMENTS ADVANCED

THAT SPECIAL LEAVE PETITION UNDER ARTICLE 136 TO THE SUPREME COURT MAINTAINABLE.

That Supreme Court can grant special leave to appeal to Times Tube Broadcasting Company.
The Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence, or order in any cause or matter passed or made by any court or tribunal1. Art 136 confers a discretionary power on the Supreme Court to interfere in suitable cases2, such as, a breach of natural justice by the order appealed against3 or in exceptional cases4. The Supreme Court will intervene in if there has been a resultant failure of justice5 or violation of principles of natural justice6 or without a proper appreciation of material on record or the submissions made7, interference under Art.136 is warranted. The Supreme Court grant leave to appeal in criminal matters when exceptional and special circumstances exist, substantial and grave injustice has been done, and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against8 or there has been a departure from legal procedure such as vitiates the whole trial, or if the findings of fact were such as were shocking to the judicial conscience of the Court9. It would interfere where High Court’s order results in gross miscarriage of justice10.

That special leave petition against interim order maintainable.
The Supreme Court exercise its jurisdiction under Art.136 of the Constitution in respect of an interlocutory/interim order in especial circumstances to prevent manifest injustice or abuse of process of the Court11 or where it is unsustainable on the face of it12 or where the interim order passed by the Division Bench of the High Court, on facts, is perverse in nature13 or unreasonable14.Where the interim order was not made in equity, interference by the Supreme Court was called for15.

THAT ORDERS OF SUBORDINATE COURT AND HIGH COURT HAVE RESULTED IN BREACH OF NATURAL JUSTICE.

That the reasons for the decision must be given.
A decision affecting the right of people without assigning any reason cannot be accepted as a procedure which is fair, just and reasonable and hence violative of Articles 14 and 2116. Reasons are the heartbeat of any judgment. Requirement of ‘reasons’ may also be implied in the principles of ‘natural justice’17. Absence of reasoning is impermissible in judicial pronouncement18. It is the reasoning alone, that can enable a higher or an appellate court to appreciate the controversy in issue in its correct perspective and to hold whether the reasoning recorded by the Court whose order is impugned, is sustainable in law and whether it has adopted the correct legal approach. To sub-serve the purpose of justice delivery system, therefore, it is essential that the Courts should record reasons for its conclusions, whether disposing of the case at admission stage or after regular hearing proper reasoning is the foundation of a just and fair decision19. Failure to give reasons amounts to denial of justice20. When the reason of a law once ceases, the law itself generally ceases21.

That order passed in violation of natural justice is void.
The breaches of rules of natural justice must have the effect of producing void decisions22. Any action in violation of principles of natural justice is a nullity23 and is ultra-vires and hence suffers from jurisdictional error24. Thus, an order which infringes an fundamental freedom passed in violation of audi altrem partem is a nullity25.

That decision of sub-ordinate court is in violation of Doctrine of Proportionality.
The punishment imposed has to be reasonable because of the constraints of Art. 14. This means that if the punishment imposed is unreasonable, Art.14 is infringed. The court can thus decide upon the proportionality of the punishment when it is strikingly disproportionate. The penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Art.14 of the Constitution26. The principle of proportionality requires infringement of Fundamental Rights to least restrictive alternative27.

THAT COMPANY CAN CLAIM FUNDAMENTAL RIGHT UNDER ARTICLE 19(1)(a) OF THE CONSTITUTION OF INDIA.

That freedom of press implicit under Article 19(1) (a) guarantying freedom of speech and expression.
Art.19 (1) (a) corresponds to Amendment I of U.S. Constitution where Freedom of Press is specifically mentioned therein. Under the Constitution of India there is no separate guarantee of freedom of the Press. It is implicit in the freedom of expression which is conferred on all citizens under Article 19(1) (a)28. The freedom of speech is regarded as “a species of which freedom of expression is a genus”29

That a company can challenge the violation of its Fundamental Rights under Article 19 of the Constitution of India.
The Supreme Court has stated that the law with regard to a company challenging the violation of its Fundamental Rights under Article 19 is in a “nebulous state”. The Court has gone on to say: “Thus apart from the law being in a nebulous state, the trend is in the direction of holding that in the matter of fundamental freedoms guaranteed by Art. 19, the rights of a shareholder and the company which the shareholders have formed are rather co-extensive and the denial to one of the fundamental freedom would be denial to the other. It is time to put an end to this controversy…”30.
This statement could perhaps be read as implying that the Court was willing to concede to the company itself the right to challenge under Art.19 the government action affecting its rights rather than adopting the fiction of a shareholder filing the writ petition31.Further, these rights have been advisedly set out in broad terms leaving scope for their expansion and adaptation, through interpretation, to the changing need and evolving notions of a free society32.

THAT COMPANY CANNOT BE HELD CRIMINALLY LIABLE FOR THE OFFENCE OF DEFAMATION.

That intention is necessary for the offence of defamation under Section 499 of Indian Penal Code.
In order to attract the offence of defamation under Section 499 of I.P.C. mens rea is required i.e. the publication must be made with intention to harm the reputation of a person against whom it was directed33.The accused must have made the imputation with the intention of harming or with the knowledge that it will harm the reputation of the person defamed. Therefore, the intention to cause harm is the most essential “sine qua non” of an offence under Section 49934. That a company cannot be held criminally liable for the offence of defamation.
In view of Section 3(42), General Clauses Act, 1897 a company or association or body of individuals answers the definition of person. So, prima facie a company may be prosecuted for demotion. But, to invoke Section 499, the defamatory publication must be associated by delinquent’s intention to cause harm. But company cannot be said to have the mens rea of forming an intention to cause harm because a company, a juristic entity cannot have any mind. If there is anything in the definition or context of a particular section in the statute which will prevent the application of the section to a limited company, certainly a limited company cannot be proceeded against. Then again a limited company cannot generally be tried when mens rea is essential35. The company is a legal entity which can be prosecuted if it is guilty of acts which make it punishable under the particular Criminal Statute36. So a company cannot be held to have committed an offence under Section 500, I.P.C37.

That decision must be given after viewing publication as a whole.
Publication must be judged as a whole38. The impact and effect of the imputations, if any, had to be considered in the background of the entire facts and circumstances stated therein. The bane and the antidote ought to have been considered together. If in one part of the publication there is something disreputable but it is removed by the other parts and the conclusions, then the disreputable part alone cannot be taken out in the process of picking and choosing in order to venture a prosecution for defamation. The circumstances under which and the portions of the article wherein the alleged defamatory imputations occur and their impact in the mind of the reader on reading the article as a whole had to be considered39.

PRAYER

In the light of the facts stated, issues raised, arguments advanced, and authorities cited, the counsels for the Appellants humbly request Hon’ble Supreme Court that it may be pleased to adjudge and declare:
1) The order passed by sub-ordinate court and High Court be quashed, and,
2) The company be absolved of charges.
And pass any other order which the Hon’ble Supreme Court may deem fit in the interest of justice, equity and good conscience.

Respectfully submitted on behalf of Appellants

S/d-

Counsel for Appellants