Anda di halaman 1dari 25

TEAM CODE: JM06

UNIVERSITY COLLEGE OF LAW, OSMANIA UNIVERSITY

2ND JUSTITIA MOOT COURT COMPETITION, 2019

IN THE HONOURABLE HIGH COURT OF TRILINGA

UNDER ARTICLE 226 OF THE CONSTITUTION OF BHARATISTAN

WRIT PETITION NO. --------- OF 2019

IN THE MATTER OF:

1. PRESIDENT OF ANDHRADESAM
2. SOFTGRID MANAGEMENT…...………………………………..PETITIONERS

V.
STATE OF TRILINGA………...………………………………..RESPONDENTS

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION


JUSTICES OF THE HIGH COURT OF TRILINGA

~Memorial for the Petitioners ~


2ND JUSTITIA MOOT COURT COMPETITION, 2019

TABLE OF CONTENTS

Table of Contents………………………………………………………………………….02
List of Abbreviations……………………………………………………………………...03
Index of Authorities……………………………………………………………………….04
Statement of Jurisdiction………………………………………………………………….05
Statement of Facts………………………………………………………………………...06
Issues Raised……………………………………………………………………………...08
Summary of Arguments…………………………………………………………………..09
Arguments advanced ……………………………………………………………………..11
Prayer……………………………………………………………………………………...24

Memorandum for the Petitioners 2


2ND JUSTITIA MOOT COURT COMPETITION, 2019

LIST OF ABBREVATIONS

Petitioners Softgrid Management and the President of Andhra Desam


Respondents State of Trilinga
SC Supreme Court
AIR All India Reporter
Art. Article
Ano. Another
Ltd. Limited
HC High Court
v. Versus
Ors. Others
SCC Supreme Court Cases
SCR Supreme Court Reporter
GFR General Financial Rules
Ed/edn Edition
Ch. V. Chapter. Verse
ILR Indian Law Reporter
Sec Section
P. Page Number

Memorandum for the Petitioners 3


2ND JUSTITIA MOOT COURT COMPETITION, 2019

INDEX OF AUTHORITIES

1. THE CONSTITUION OF INDIA, 1950.


2. INFORMATION TECHNOLOGY ACT, 2000
3. AADHAAR ACT, 2016
4. REPRESENTATION OF PEOPLE’S ACT, 1951
5. GENERAL FINANCIAL RULES, 2017

BOOKS REFERRED

1. CONSTITUTION OF INDIA, M.P. JAIN.


2. CONSTITUTION OF INDIA, D.D. BASU.

WEBSITES REFERRED

1. Manupatra Online Resources http://www.manupatra.com.


2. SCC Online http://www.scconline.co.in.
3. Indian Kanoon https://indiankanoon.org/.
4. Advocate Khoj www.advocatekhoj.com
5. Legal Crystal www.legalcrystal.com
6. Live law www.livelaw.com.

Memorandum for the Petitioners 4


2ND JUSTITIA MOOT COURT COMPETITION, 2019

STATEMENT OF JURISDICTION

The Hon’ble High Court of Trilinga has jurisdiction in this matter under Article 226 of the
Constitution of Bharatistan and also the inherent powers vested under Section 482 of the
Code of Criminal Procedure to quash the criminal proceedings.

Memorandum for the Petitioners 5


2ND JUSTITIA MOOT COURT COMPETITION, 2019

STATEMENT OF FACTS

BACKGROUND
1. Bharatistan is a Federal state in Asia and it consists of 30 states and 10 union
territories. The National Constitution of the country guarentees several fundamental
rights and freedom to the citizens, some of which are available to the non citizens.
Right to life and Personal liberty is a fundamental right conferred on all the persons in
Bharatistan. Freedom of speech and expression is available only to its citizens. The
country has a large population consisting of approximately 140 crores of people. The
Federal Government, in order to authenticate the identity of all the citizens, decided to
provise each citizen, a unique identity called, “Sadhar”.

2. Sadhar is given to all the citizens in both soft and hard copies. It consist of each
citizens’ name, parents name, date of birth, educational qualification, woek details,
permanent address, marital status etc., All the information is secured with biometrics.
All these details of the citizens have been stored on a secure database under the
control of Sadhar Authority of Bharatistan. Further, the mandate given to the Sadhar
Authority is to prevent the data from falling into private hands, including private
persons, organizations and even unrelated government authorities.

3. Andhranadu is one of the coastal states in Bharatistan which is under the rule of
regional political party ‘Andhra Desam’. The main opposition party in Andhranadu is
also an regional party called Andhra Congress. In view of the general elections
scheduled to be held within the next two months, there is a surcharged political
enivironment in Andhranadu. Both the ruling and opposition parties are determined to
win the election at any cost. One of the neighbouring states of Andhranadu is Trilinga.
Trilinga is a newly formed state, carved out of Andhranadu about five years back,
under the State Reorganization Act which permitted both the states to use the catipal
of Trilinga, Bhagyanagara as the common capital for a period of 10 years.

THE DISPUTE

4. Mr. Vaghesh, an active supporter of the Andhra congress, working in a software


company in Bhagyanagara came to know that all the particulars of voters in
Andhranadu are available with one software company in Bhagyanagara called
“Softgrid” and that such company was was appointed by Andhra Desam Government
in Andhranadu, for maintaining the data the data of all the residents and voters in the
state for ascertaining the success in implementation of the State Government
Schemes.

5. The data of all the voters mainteained by softgrid contained identical information
available with the Sadhar Authority of the Federal Government and that the entire
information, including the sensitive information of individual voters was made
available to the ruling party in Andhranadu. He also found out that the same data was
used by the ruling party workers to apply for deletion of the names of the voters
known to be the supporters of the main opposition party i.e., The Andhra Congress in
Memorandum for the Petitioners 6
2ND JUSTITIA MOOT COURT COMPETITION, 2019

Andhranadu. His own vote was deleted by the Election Comission though he had not
applied for deletion from the list.

6. Vaghesh lodged a complaint with the police of Bhagyanagara against Softgrid


company, its Managing Director and other Directors, alleging that theft of data of
about 3 croroes people of Andhranadu, was committed by Softgrid and its
management and that the same has been misused by unintended beneficiaries for
selfish purposes.

7. Simultaneously, he also lodged a complaint with the Election Comission of


Bharatistan and The Sadhar Authority also seeking to take action against Softgrid and
the ruling party of Andhranadu i.e., Andhra Desam. Acting upon the complaint, the
Bhagyanagara police arrested the Managing Director of Softgrid and issued notices to
the President of the Andhra Desam to appear before them to answer certain questions.

JUDICIAL TREATMENT

8. Aggrieved by the action of the police, Softgrid Management and the President of
Andhra Desam filed a writ petition before the Moot Court (similar to the Hon’ble
High Court of Trilinga) to quash the proceedings. In view of the larger issues
involved, the matter was referred to a Constitutional Bench of the Court to decide the
following issues.

Memorandum for the Petitioners 7


2ND JUSTITIA MOOT COURT COMPETITION, 2019

ISSUES RAISED

ISSUE NO. I

WHETHER THE CITIZENS WHOSE DATA WAS ALLEGEDLY STOLEN,


HAVE A RIGHT TO DATA PRIVACY?

ISSUE NO. II

WHETHER THE ALLEGED DATA THEFT FOR ULTERIOR MOTIVES, IS AN


OFFENCE OR A CIVIL WRONG UNDER ANY LAW IN FORCE IN THE TIME
BEING, IN THE REPUBLIC OF BHARATISTAN OR ANY OF ITS STATES?

ISSUE NO. III

WHETHER THE BHAGYANAGARA POLICE HAVE JURISDICTION TO


REGISTER THE CRIMINAL CASE AND PROSECUTE THE SOFTGRID
MANAGEMENT IN BHAGYANAGARA?

ISSUE NO. IV

WHO ELSE HAS THE JURISDICTION TO COMPLAIN ABOUT THE DATA


THEFT, IF IT IS AN ACTIONABLE WRONG?

ISSUE NO. V

WHETHER THE RESPONDENTS IN THE CASE ARE ENTITLED TO ANY


RELIEF?

Memorandum for the Petitioners 8


2ND JUSTITIA MOOT COURT COMPETITION, 2019

SUMMARY OF ARGUMENTS

1) WHETHER THE CITIZENS WHOSE DATA WAS ALLEGEDLY STOLEN,


HAVE A RIGHT TO DATA PRIVACY?

It is humbly submitted before the Hon’ble High Court of Trilinga that the data was
not stolen by the software company but it was authorized to maintain the data of all the
residents and voters for ascertaining the success government schemes implemented by the
Andhra Desam Government of Andhranadu. The company’s action is not violative of the
right to privacy of the individuals. Also, that the allegations made by Mr. Vaghesh against the
sharing of data of the voters to Andhra Desam party is frivolous and baseless and is liable to
be quashed.

2) WHETHER THE ALLEGED DATA THEFT FOR ULTERIOR MOTIVES, IS AN


OFFENCE OR A CIVIL WRONG UNDER ANY LAW IN FORCE IN THE TIME
BEING, IN THE REPUBLIC OF BHARATISTAN OR ANY OF ITS STATES?

It is humbly submitted before the Hon’ble Court that the act of Softgrid does not
constitute data theft and is not an offence. Even in the case when the allegations are assumed
to be true, there exists a contract between Softgrid and the state Government of Andhranadu
which is binding and sharing the data of the citizens would amount to breach of trust and
breach of contract which are civil in nature thereby making it a civil wrong.

3) WHETHER THE BHAGYANAGARA POLICE HAVE JURISDICTION TO


REGISTER THE CRIMINAL CASE AND PROSECUTE THE SOFTGRID
MANAGEMENT IN BHAGYANAGARA?

It is humbly submitted before this Court that the Bhagyanagara police do not have
the jurisdiction to register and prosecute Softgrid management in Bhagyanagara due to lack
of territorial jurisdiction as the data belongs to the citizens of Andhranadu and the cause of
action arouse in Andhranadu. Also, since the allegations made by Vaghesh when presumed to
be true, constitute a civil wrong, a criminal complaint or an FIR cannot be lodged at any
police station.

Memorandum for the Petitioners 9


2ND JUSTITIA MOOT COURT COMPETITION, 2019

4) WHO ELSE HAS THE JURISDICTION TO COMPLAIN ABOUT THE DATA


THEFT, IF IT IS AN ACTIONABLE WRONG?

It is humbly submitted before the Hon’ble court that authorities such as:

A. Controller of certifying authorities (C.C.A) appointed by the central government


under section 17 of Information Technology act
B. Adjudicating Officer appointed by the central government under section 46 of
Information Technology act
C. The Cyber appellate tribunal established under section 48 of the Information
technology act

5) WHETHER THE RESPONDENTS IN THE CASE ARE ENTITLED TO ANY


RELIEF?

It is humbly submitted before the Hon’ble court that the respondents in the present case
are not entitled to any relief.

Memorandum for the Petitioners 10


2ND JUSTITIA MOOT COURT COMPETITION, 2019

ARGUMENTS ADVANCED

1) WHETHER THE CITIZENS WHOSE DATA WAS ALLEGEDLY STOLEN,


HAVE A RIGHT TO DATA PRIVACY?

It is humbly submitted before the Hon’ble High Court of Trilinga that the right to
privacy of the citizens of Andhranadu has not been violated and the same shall be established
by the following arguments: Firstly, that Softgrid has not stolen the data of the voters and
residents. Secondly, legitimate state aim is a reasonable restriction on right to privacy.
Thirdly, the allegations made by Vaghesh against the petitioners are frivolous.

1.1) Softgrid has not stolen the data of the voters of Andhranadu

The Andhra Desam Government of Andhranadu has authorized the Softgrid Company
to maintain and store the data of all the residents and voters in the state for ascertaining the
success in implementation of the State Government schemes.1

Such an appointment of private organisations by the Government is done through a


service contract in accordance with Article 2992 of the Constitution of Bharatistan which
empowers the State to enter into contracts. In the instant case, the contract between
Andhranadu Government and Softgrid is a consultancy service contract defined under Rule
177 of GFR 20173.

We may justify the need for Procurement of Consultancy Services on consideration


of the inadequacy of Capability or Capacity of required expertise in-house; the need to have
qualified consultant for providing a specialized high quality service, etc. Even though, there
may be internal capacity/capability to do the job but there are considerations of economy,
speed and efficiency in relation to additional requirement/commitment/usage of;

a) Staff/Management/Organization;

b) Technological and Material Resources;

c) Money and

d) Time/Speed of execution, contracts are justified.

1
Para 4 (factsheet)
2
Article 299 of the Constitution of India, 1950 (contracts)
3
Rule 177 of GENERAL FINANCIAL RULES 2017, Ministry of Finance, Department of Expenditure

Memorandum for the Petitioners 11


2ND JUSTITIA MOOT COURT COMPETITION, 2019

Rule 178 & 180 of GFR 20174, permits Ministries/ Departments to hire external
professionals, consultancy firms or consultant for a specific job, which is well defined in
terms of content and time frame for its completion.

From the arguments submitted above, the counsel on behalf of the petitioners
contends that there exists a service contract between the Government of Andhranadu and
Softgrid, thereby authorizing Softgrid to store and maintain the data of the voters of
Andhranadu.

1.2) Right to Privacy of the citizens of Andhranadu has not been violated

The right to privacy emanates from Article 215 of the Constitution of Bharatistan
which upholds the right to life and personal liberty. Article 21 articulates that no person shall
be deprived of his life or personal liberty except according to procedure established by law.
The right to privacy, which is an intrinsic part of the right to life and liberty, and the freedoms
embodied in Part III, is subject to the same restraints which apply to those freedoms.

In the instant case, the collection of data by the Government of Andhranadu is not
violative of the right to privacy of its citizens since the State is authorized legally, to keep a
record of the intended beneficiaries and expenditures incurred thereby. The modern state of
Bharatistan being a welfare state has the responsibility to provide benefits to impoverished
and marginalised sections of society and ensure an inclusive growth of its citizens along with
economic development.

“There is a vital state interest in ensuring that scarce public resources are not
dissipated by the diversion of resources to persons who do not qualify as recipients.
Allocation of resources for human development is coupled with a legitimate concern that the
utilisation of resources should not be siphoned away for extraneous purposes.6”

For the said reasons, the central and the state Governments of the union of Bharatistan launch
several welfare schemes in the process of which the Government of Andhranadu has
collected the data of the citizens.

4
Rule 178 and 180 of GENERAL FINANCIAL RULES 2017, Ministry of Finance, Department of Expenditure
5
Article 21. Protection of Life And Personal Liberty: No person shall be deprived of his life or personal liberty
except according to procedure established by law. Part 3, Constitution of India, 1950
6
Justice K.S.Puttaswamy(Retd) vs Union Of India AIR 2017 SC 4161

Memorandum for the Petitioners 12


2ND JUSTITIA MOOT COURT COMPETITION, 2019

The Hon’ble Supreme Court of Bharatistan, in this regard has already held that-

“Data mining with the object of ensuring that resources are properly deployed to
legitimate beneficiaries is a valid ground for the state to insist on the collection of authentic
data.”7; thereby justifying the action of the Government of Andhranadu.

Therefore, in the light of the above stated reasons, the counsel on behalf of the petitioners
contends that the action of the Government of Andhranadu and Softgrid does not encroach
the Right to privacy of the citizens.

1.3) The allegations made by Vaghesh are frivolous and are liable to be quashed

Mr.Vaghesh being an active supporter of the main opposition party, Andhra Congress,
has lodged a criminal complaint by false accusations on the Petitioners.

It has been specifically stated in the facts that Softgrid has been appointed by the
Government of Andhranadu for storage and maintenance of data of all the voters and
residents in the state8. And that appointment and authorization has been justified and
established under issue 1.1 (supra). On the other hand, Mr. Vaghesh’s allegation of theft of
data of about 3 crores people of Andhranadu,9 over Softgrid is frivolous and baseless.

Considering the situation in Andhranadu as iterated in the facts, there is a surcharged


political environment prevailing in the State because of the upcoming general elections and
both the parties are determined to win it at any cost; the whole allegations made by Vaghesh
stand solely for the purpose of framing the ruling party and defame it to seek political
vengeance. The allegations made in the facts that the identical Sadhar data termed as the
sensitive information of the citizens being made available to the Andhra Desam workers is
hereby denied by the petitioners.

7
Ibid

8
Factsheet para 4
9
Factsheet para 6

Memorandum for the Petitioners 13


2ND JUSTITIA MOOT COURT COMPETITION, 2019

In Som Mittal v. Govt. of Karnataka10, the Supreme Court held that,

 When grave miscarriage of justice would be committed if the trial is allowed to


proceed; or
 Where the accused would be harassed unnecessarily if the trial is allowed; or
 When prima facie it appears to Court that the trial would likely to be ended in
acquittal.

Then the inherent power of the Court under Section 482 of the Code of Criminal Procedure
can be invoked by the High Court either: To prevent abuse of process of any Court, or
otherwise; To secure the ends of justice.

Hence, the petitioners have approached this Hon’ble Court for getting the frivolous
criminal complaint filed against them quashed through the inherent powers vested under
Section 482 of Cr.p.c. and Article 226 of the Constitution of Bharatistan.

10
Som Mittal vs Govt. Of Karnataka on 29 January, 2008

Memorandum for the Petitioners 14


2ND JUSTITIA MOOT COURT COMPETITION, 2019

2) WHETHER THE ALLEGED DATA THEFT FOR ULTERIOR MOTIVES, IS AN


OFFENCE OR A CIVIL WRONG UNDER ANY LAW IN FORCE IN THE TIME
BEING, IN THE REPUBLIC OF BHARATISTAN OR ANY OF ITS STATES?

The counsel on behalf of the petitioner humbly submits that the petitioners are not
responsible for the alleged data theft.

In the facts of the case it is clearly stated that the Softgrid company was appointed by Andhra
Desam Government in Andhranadu. The sensitive information of individual was made
available to the ruling party in Andhranadu by Softgrid company.

DATA THEFT:

Data theft is the act of stealing computer-based information from an unknowing victim with
the intent of compromising privacy or obtaining confidential information.

The meaning of this term Data theft can be inferred by importing definition of ‘data’ from
the Information Technology Act and ‘theft’ from the Indian Penal Code 1860. As per the
definition of ‘data’ provided under the IT Act11, data includes information, knowledge,
facts, concepts or instructions in any form (including computer printouts magnetic or
optical storage media, punched cards, punched tapes) or stored internally in the memory
of the computer. On the other hand, the term ‘theft’ under Section 378 of IPC has been
defined as- “Whoever, intending to take dishonestly any movable property out of the
possession of any person without that person’s consent, moves that property in order to
such taking, is said to commit theft.”

Firstly, data is not moveable property. ‘Moveable Property’ is defined by Section 22 of


IPC as ‘corporeal property’. A thing is ‘corporeal’ if it has a body, material and a physical
presence. Data clearly does not qualify, as it is incorporeal, non-tangible and ephemeral
sort of a property. This by itself may take ‘data’ outside the purview of Section 378 of the
IPC.

Secondly, even assuming (without admitting) that data is ‘moveable property’, even then
the act of stealing ‘data’ may not necessarily entail ‘moving’ of data in the physical sense
of the term as the data continues to be in the possession of the true owner. The data thief

11
Section 2(1)(o) of Information Technology Act 2000

Memorandum for the Petitioners 15


2ND JUSTITIA MOOT COURT COMPETITION, 2019

may have merely copied the data, with the original data remaining unmoved in the hands
of the true owner.

In the case of Adventz Investments and Holdings Limited & Ors. vs. Birla Corporation
&Anr12, it is said that ‘information’ by itself (without a physical manifestation) cannot be
the subject matter of theft and the offence of theft in IPC is premised on ‘physicality’ of
the property. Forming the subject matter of theft if such property is moved the original
owner should lose the possession of the property.
In K.N.Mehra V. The State of Rajasthan13, it is stated that there should be legitimate
inference from the facts and the circumstances of the case that the facts should be proved
to constitute theft.14

It can be clearly inferred from the facts of the case and the meaning of the data theft that in
this present case the data was handed over to the company by the government of the state and
the company is not liable for data theft.

Even if the allegations are presumed to be true, , there exists a contract between Softgrid and
the state Government of Andhranadu which is binding and sharing the data of the citizens
would amount to breach of trust and breach of contract which are civil in nature thereby
making it a civil wrong.

CIVIL WRONG:

A civil wrong or wrong is a cause of action under the law of the governing body. Tort, breach
of contract and breach of trust are types of civil wrong. Something that amounts to a civil
wrong is said to be wrongful. A wrong involves the violation of a right because wrong and
right are complementary terms.

Breach of Contract:

"Breach of contract" is a legal term that describes the violation of a contract or an agreement
that occurs when one party fails to fulfill its promises according to the provisions of the
agreement. Sometimes it involves interfering with the ability of another party to fulfill his
duties. A contract can be breached in whole or in part.

12
2015CriLJ3369
13
AIR 1957 SC 926
14
1957 AIR 369, 1957 SCR 623

Memorandum for the Petitioners 16


2ND JUSTITIA MOOT COURT COMPETITION, 2019

In Hridaya Rangan Pd Verma and Ors. V. State of Bihar and Anr15., it is stated that mere
breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or
dishonest intention is shown right at the beginning of the transaction, that is the time when
the offence is said to have been committed. From his mere failure to keep up promise
subsequently such a culpable intention right at the beginning, that is, when he made the
promise cannot be presumed.

Breach of Trust:

1) Any act which is in violation of the duties or a trustee or of the terms of a trust. Such a
breach need not be intentional or with malice, but can be due to negligence.

2) Breaking a promise or confidence.

Misappropriation:

Misappropriation is the intentional, illegal use of the property, ideas, or funds of another
person for one's own use or other unauthorized purpose, especially by a public official, a
trustee of a trust, an executor or administrator of a dead person's estate or by any person with
a fiduciary duty to care for and protect another's assets.

Section 7316 of the Indian Contract Act provides that when a contract has been broken, the
party who suffers by such breach is entitled to receive, from the party who has broken the
contract.

Section 7417 of the ICA 1872 states, when a contract has been broken, if a sum is named in
the contract as the amount to be paid in case of such breach, or if the contract contains any
other stipulation by way of penalty, the party complaining of the breach is entitled, from the
party who has broken the contract.

In the present case there is a contract between Andranadu and Softgrid under Article
29918 of the Constitution of Bharatisthan. As the Softgrid company has not fulfilled its
oblilgations by transferring the data to the ruling party i.e., Andra Desam, it has breached the
contract and breach of contract is a civil wrong.

Hence, it is humbly submitted that the criminal proceedings should be quashed.

15
2000 (2) SCR 859.
16
Chapter VI of Indian Contract Act 1872
17
Chapter VI of Indian Contract Act 1872
18
M/S. Kailash Nath Associates vs Delhi Development Authority & Anr

Memorandum for the Petitioners 17


2ND JUSTITIA MOOT COURT COMPETITION, 2019

3) WHETHER THE BHAGYANAGARA POLICE HAVE JURISDICTION TO


REGISTER THE CRIMINAL CASE AND PROSECUTE THE SOFTGRID
MANAGEMENT IN BHAGYANAGARA?

The counsel on behalf of the petitioner humbly submits that it is a civil wrong and
the Bhagyanagara police have no jurisdiction to register the case and the cause of action
arouse in Andhranadu.

A civil wrong or wrong is a cause of action under the law of the governing body. Tort,
breach of contract and breach of trust are types of civil wrong. Something that amounts to
a civil wrong is said to be wrongful. A wrong involves the violation of a right because
wrong and right are complementary terms.

The Bhagyanagara police has no jurisdiction to register the case because, no FIR can be
registered under any civil dispute. Section 154 of Criminal Procedure code19 , clearly
states that police are duty bound to register a complaint about a cognizable offence. A civil
wrong cannot be called as an offence.

The offences are to be investigated by police station within whose local jurisdiction it was
committed. Thus, to have jurisdiction to deal with the offence in its local limits, it is
necessary that at least some part of cause of action must have taken place within the
local jurisdiction of that court.

In Y. Abraham Ajith & Ors vs Inspector Of Police, Chennai & Anr20, it is clearly said
that in civil cases, normally the expression "cause of action" is used, in criminal cases as
in Section 177 of the Criminal Procedure Code, reference is to the local jurisdiction where
the offence is committed. These variations in etymological expression do not really make
the position different.

Under section 177 of criminal procedure code, every offence shall ordinarily be inquired
into and tried by a court with whose local jurisdiction it was committed.

To make investigation on the part of a police station is directly interlinked with the place
where the trial for that offence can be held by the court. If the court has no jurisdiction to

19
State of Gujarat V. Girish Radhakishan Varde
20
Y. Abraham Ajith & Ors vs Inspector Of Police, Chennai & Anr (2004) 8 SCC 100

Memorandum for the Petitioners 18


2ND JUSTITIA MOOT COURT COMPETITION, 2019

try offence, the police Station falling within the local limits of that court also has no
jurisdiction to investigate the matter.

In the case of Naresh Kavarchand Khatri v/s State of Gujarat & Anr21 , Hon'ble Supreme
Court has observed “whether an officer in charge of a police station has the requisite
jurisdiction to make investigation or not will depend upon a large number of factors
including those contained in Sections 177, 178 and 181 of the Code of Criminal
Procedure. In a case where a trial can be held in any of the places falling within the
purview of the aforementioned provisions, investigation can be conducted by the officer in
charge of the police station concerned which has jurisdiction to investigate in relation
thereto.” It is thus clear that according to Hon'ble Supreme Court, jurisdiction to make
investigation on the part of a police station is directly interlinked with the place where the
trial for that offence can be held by the court.

In the present case the cause of action arose in Andhranadu, where the Softgrid company
transferred the information to the ruling party i.e., Andra Desam in Andhranadu. So, the
Bhagyanagara police has no territorial jurisdiction to register the complaint. If any police
have an authority to register the complaint, then it would be the police of the Andhranadu
as the cause of action took place in Andhranadu.

Hence, it is humbly submitted that the Bhagyanagara police has no jurisdiction to register
the criminal case and prosecute the Sofrgrid management.

21
(2008) 8 SCC 300

Memorandum for the Petitioners 19


2ND JUSTITIA MOOT COURT COMPETITION, 2019

4) WHO ELSE HAS THE JURISDICTION TO COMPLAIN ABOUT THE DATA


THEFT, IF IT IS AN ACTIONABLE WRONG?

It is humbly submitted before the Hon’ble court that the following authorities/individuals
have the jurisdiction in regard to complaints about data theft:

I. CONTROLLER OF CERTIFYING AUTHORITY (C.C.A)

Under sec 17 of the information technology act, 2000 controller of certifying authorities
(C.C.A) is appointed by the central government. The main functional departments under
C.C.A are: a) Technology b) Finance and legal and c) Investigation. Each of these
departments has a deputy controller and assistant controllers. Under section 27 of Information
technology act, the controller can delegate power to the deputy controller or any officer. Any
such deputy controller or officer authorized by the controller shall take up investigation of
any contravention related to data theft, privacy violations, defamation, spamming etc22 of the
provisions of information technology act, rules or regulations under section 28.

The controller’s power to investigate contraventions is restricted to the licensed certifying


authorities, subscribers and electronic signature certificates. In Yahoo India Pvt. Ltd. v. Union
of India23, the high court of Delhi examined the power of controller of certifying authorities
(C.C.A) under Section 28 of Information technology act. The court made a clear distinction
in regards to jurisdiction of adjudicating officer in investigating contraventions under section
46 and jurisdiction of controller of certifying authorities in investigating contraventions under
section 28 of the information technology act. Moreover, the right of CCA to investigate any
contravention under section 28 was not disturbed by the court.

II. ADJUDICATING OFFICER

If any person has committed a contravention of any of the provisions of Information


Technology Act, 2000 or of any rule, regulation, direction or order, there shall be an
adjudicating officer for holding an inquiry in the manner prescribed by the central
government. The adjudicating officer exercises jurisdiction in respect of the contraventions in
relation to chapter IX of the act.

22
M/s. Mascon Global Ltd. v. CCA, [Appeal No. 7/2009]
23
Yahoo India Pvt. Ltd. v. Union of India WP(C) 6654/2011

Memorandum for the Petitioners 20


2ND JUSTITIA MOOT COURT COMPETITION, 2019

The supreme court in the case of:

Indian National Congress (I) v. Institute of Social Welfare 24, “where the law requires that an
authority before arriving at a decision must make an enquiry, such a requirement of law
makes the authority a quasi-judicial authority”. It is clear that the adjudicating officer under
the act is a quasi-judicial authority. The adjudicating officer is limited to the determination of
contraventions and imposition under section 43, 43A, 44, and 45 of the act only.

Further, Under Rule 4 of the Information Technology [“Qualification and Experience of


Adjudicating Officer and Manner of Holding Enquiry] lists out few important provisions
which are as follows [Rule 4]:

a) To exercise jurisdiction in respect of the contraventions in relation to chapter IX


of the act
b) To receive complaint from the complainant
c) To issue notices together with all the documents to all the necessary parties to the
proceedings, fixing a date and time for further proceedings;
d) To hold an enquiry or dismiss the matter or may get the matter investigated
e) To enforce attendance of any person or persons
f) To fix a date and time for production of documents or evidence and
g) To hear and decide every application, as far as possible, in four months and the
whole matter in six months

If the adjudicating officer is convinced that scope of case (under adjudication) extends to
offences under chapter XI of the act, needing appropriate punishment instead of penalties,
then as per the aforesaid rules, he should transfer the case to the magistrate having
jurisdiction to try the case, through the presiding officer.

III. THE CYBER APPELLATE TRIBUNAL

The act has established the Cyber Appellate Tribunal under section 48 of the Information
Technology act, 2000 which reads as follows:

Section 48. Establishment of Cyber Appellate Tribunal – (1) The central government
shall, by notification, establish one or more appellate tribunals to be known as the Cyber
Appellate Tribunal.

24
Indian National Congress (I) v. Institute of Social Welfare AIR 2002 SC 2158

Memorandum for the Petitioners 21


2ND JUSTITIA MOOT COURT COMPETITION, 2019

The Cyber Appellate Tribunal having appellate jurisdiction and being an appellate authority
is entitled to exercise its appellate jurisdiction both on fact as also in law over a decision or
order passed by the controller of certifying authorities or the adjudicating officer. It was held
by the Supreme Court in Union of India v. Paras Laminates (P.) Ltd.25, “There is no doubt
that the Tribunal functions as a court within the limits of its jurisdiction. It has all the powers
conferred expressly by the statute. Furthermore, being a judicial body, it has all those
incidental and ancillary powers which are necessary to make fully effective the express grant
of statutory powers”.

The Cyber Appellate Tribunal in view of exercising its incidental and ancillary powers has
directed the adjudicating officer of the state of Maharashtra to take cognizance of the
complaint filed by ICICI account holder. Hon’ble Justice Rajesh Tandon, the chairperson of
the tribunal opined26: “In view of the complaint, I direct the secretary (IT) to look into the
matter and pass appropriate orders after hearing both the parties. However, liberty is given to
approach this tribunal in case no action is taken by any if the authorities by filing a proper
appeal before this tribunal”.

The power of the cyber appellate tribunal to examine the correctness, legality or propriety of
the decision or order passed by the controller of certifying authorities or the adjudicating
officer is absolute.

25
Union of India v. Paras Laminates (P.) Ltd., Order dated 17-7-2009
26
Order dated 17-7-2009 in a complaint against ICICI bank

Memorandum for the Petitioners 22


2ND JUSTITIA MOOT COURT COMPETITION, 2019

5) WHETHER THE RESPONDENTS IN THE CASE ARE ENTITLED TO ANY


RELIEF?

It is humbly submitted before the Hon’ble court that the respondents in the present case are
not entitled to any relief since the allegations against the petitioners are false and lack
substantial evidence. It is clear from the facts of the case that the allegations do not constitute
data theft or data stealing or any offence under any law in force in the time being, in the
Republic of Bharatistan or any of its states.

Therefore, it is humbly submitted on behalf of the petitioners before the Hon’ble court that it
was held in the case of State of Haryana and Ors. V. Ch. Bhajan lal, 27the High Court may in
exercise of powers under Art. 226 of Constitution or under sec. 482 Cr.P.C. to quash the
proceedings and may interfere in proceedings relating to cognizable offences to prevent abuse
of the process of any court or otherwise to secure the ends of justice in the following
situations:

I. Where the allegations made in the First Information Report or the complaint, even if
they are taken at their face value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the accused.
II. Where the allegations in the First Information Report and other materials, if any,
accompanying the F.I.R. do not disclose a cognizable offence, justifying an
investigation by police officers under sec. 156(1) of the Code except under an
order of a Magistrate within the purview of sec. 155(2) of the Code.
III. Where the uncontroverted allegations made in the FIR or complaint and the evidence
collected in support of the same do not disclose the commission of any offence
and make out a case against the accused.
IV. Where, the allegations in the FIR do not constitute a cognizable offence but
constitute only a non-cognizable offence, no investigation is permitted by a police
officer without an order of a Magistrate as contemplated under sec. 155(2) of the
Code.

27
AIR 1992 SC 604

Memorandum for the Petitioners 23


2ND JUSTITIA MOOT COURT COMPETITION, 2019

V. Where the allegations made in the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding against the accused.
VI. Where there is an express legal bar engrafted in any of the provisions of the Code or
the concerned Act (under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or where there is a specific
provision in the Code or the concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
VII. Where a criminal proceeding is manifestly attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him due to private and personal
grudge. Where allegations in the complaint did constitute a cognizable offence
justifying registration of a case and investigation thereon and did not fall in any of
the categories of cases enumerated above, calling for exercise of extraordinary
powers or inherent powers, quashing of FIR was not justified.

Clearly, it can be inferred from the facts that the allegations in the First Information Report
do not prima facie constitute an offence and the allegations lack evidence.

Hence, it is prayed that the FIR should be quashed as it is not in conformity with the
procedure established by law.

Memorandum for the Petitioners 24


2ND JUSTITIA MOOT COURT COMPETITION, 2019

PRAYER

Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed before the Hon’ble High Court of Trilinga that it may be
pleased to:

1) Issue a writ of mandamus to quash the criminal proceedings against the petitioners

And/or

Pass any other order(s) that the Hon’ble Court deems fit in the interest of Justice, Equity
and Good conscience.

For this act of kindness, the Petitioners as in duty bound, shall humbly pray.

COUNSELS FOR THE PETITIONERS

Place:

Date:

Memorandum for the Petitioners 25