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XIII INTERNAL MOOT COURT COMPETITION, 2018

BEFORE THE SUPREME COURT OF INDIANA

HARRY, PARRY & ZINC ENTERPRISES LTD. ...........PETITIONER

V.

STATE OF INDIANA ...........RESPONDENT

SUBMISSION ON BEHALF OF RESPONDENT


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XIII Internal Moot Court Competition, 2018

TABLE OF CONTENT

ABBREVIATIONS………………………………………………………………………………….3

INDEX OF AUTHORITIES ………………………………………………………………………….4

TABLE OF CASES ……………………………………………………………….………….4

BOOKS REFERRED ………………………………………………………………………...5

STATUES …………………………………………………………………………………5

ONLINE DATABASIS……………………………………………………………………….5

STATEMENT OF JURISDICTION …………………………………………………………………6

STATEMENT OF FACTS ………………………………………………………………………….7

STATEMENT OF ISSUES ……………………………………………............................................9

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

ARGUMENTS ADVANCED ………………………………………………………………………..13

ISSUE 1 THE CONSTITUTIONALITY OF SECTIONS 67A, 69A AND 69B OF THE INFORMATION

TECHNOLOGY ACT, 2000 (AS AMENDED) AND ALLIED PROVISIONS OF IPC (SECTION 340) &
INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986 (SECTION 3 AND 4)?.......... 13.

ISSUE 2 WHETHER THERE WAS ANY UNDUE INFRINGEMENT OF RIGHT TO PRIVACY BY THE
SEARCH OF PRIVATE DOCUMENTS AND LETTERS WHICH WERE NOT MEANT FOR PUBLIC
DISCLOSURE? ................................................................................................................................17.

ISSUE 3 WHETHER THERE IS VIOLATION OF ARTICLE 20(3) IF ANY PRIVATE UNPUBLISHED


DOCUMENT/ INFORMATION HAS BEEN USED IN ORDER TO CONVICT THE ACCUSED?..................19.

PAYER ...................................................................................................................................22

Submission on Behalf of Respondent


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ABBREVIATION

AIR...……………………………………………………………………ALL INDIA REPORT

SC…………………………………………………………………………SUPREME COURT

HC………………………………………………………………………………HIGH COURT

CO………………………………………………………………………………… COMPANY

SCC…………………………………………………………........SUPREME COURT CASES

Submission on Behalf of Respondent


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INDEX OF AUTHORITIES

Table of Cases

S.no Name of the case Citation


1 Delhi Judicial Service Assn. v. State of Gujarat (1991) 4 SCC 406, 431
2 M.P. Sharma v. Satish AIR 1954 SC 300
3 Md. Dastagir v. State of Madras AIR 1960 SC 756
4 Petronet lng. Ltd. v. Indian petro group 2009 SCC Del 841
5 Ramesh Thappar v. State of Madras AIR 1950 S.C. 124

6 Ramesh Yashwant Prabhoo (Dr) v. Prabhakar


(1996) 1 S.C.C. 130
Kashinath Kunte,
7 Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 S.C. 881
8 Shreya Singhal v. Union of India, (2015) 5 S.C.C. 1
9 State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808
10 State of Madras v. Kathi Kalu AIR 1961 SC 1808
11 State of U.P. v. Boota Singh, AIR 1978 SC 1770
12 V.S. Kuttan Pillai v. Ramakrishnan AIR 1980 SC 185

Books Referred

1. APAR GUPTA, INFORMATION TECHNOLOGY ACT (3RD EDITION, 2016)


2. DD BASU COMMENTARY ON THE CONSTITUTION OF INDIA, VOL 4 (9TH ED 2015)
3. DD BASU COMMENTARY ON THE CONSTITUTION OF INDIA, VOLUME 3 (9TH ED 2015)

4. DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA ( 13TH EDITION, 2006)


5. M.P. JAIN, INDIAN CONSTITUTIONAL LAW, (7TH ED. 2010)
6. SUDIPTO SARKAR AND V R MANOHAR LAW OF EVIDENCE 1466 (17TH ED. 2010)
7. MAMTA RAO, CONSTITUTIONAL LAW 210 (1ST ED. 2013)

Submission on Behalf of Respondent


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XIII Internal Moot Court Competition, 2018

8. P.M. BAKSHI, THE CONSTITUTION OF INDIA( 11TH EDITION, UNIVERSAL LAW PUBLISHING CO,
2011)
9. PSA PILLAI, CRIMINAL LAW ( 13TH EDITION, LEXIS NEXIS, 2017)
10. R.V. KELKAR, CRIMINAL PROCEDURE (6TH EDITION, EBC, 2016)
11. RATANLAL & DIRAJLAL, THE LAW OF EVIDENCE 1003, (3RD ED. 2011)
Statutes

1. CODE OF CRIMINAL PROCEDURE, 1973


2. INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986
3. INDIAN PENAL CODE, 1860
4. THE CONSTITUTION OF INDIA
5. THE EVIDENCE ACT, 1995
6. THE INFORMATION TECHNOLOGY ACT, 2000

Online Database

1. SCC ONLINE
2. LEXIS NEXIS
3. TAXMANN.COM
4. MANUPATRA
5. ALL INDIA REPORTER

Submission on Behalf of Respondent


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XIII Internal Moot Court Competition, 2018

STATEMENT OF JURISDICTION

The Petitioners have approached the Hon’ble Supreme Court of Indiana under Article 139A of
the Const. of Indiana. The matter has been referred by the division bench to this Hon’ble bench
of Supreme Court of Indiana.

THE PRESENT MEMORANDUM SETS FORTH THE FACTS CONTENTIONS AND


ARGUMENTS IN THE PRESENT CASE

All of which humbly submitted:

Counsel for the Respondent

Submission on Behalf of Respondent


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XIII Internal Moot Court Competition, 2018

STATEMENT OF FACTS

I. Zinc Enterprises Ltd. was one of those companies which invested in Indiana. The company
mainly dealt with the computer and mobile applications. They developed new application
software known as ‘Commu-app’, a private messaging application that was easily available
on web store for download.
II. Commu-app used an ‘end – to – end encryption’ communication system. Users could easily
make an account and share pictures, voice messages, videos, messages and document with
their personal contacts through this medium.
III. In 2008, the Zinc Enterprises Ltd. Collaborated itself with another company, known as
‘Features’, owned by Feature Co. Ltd.
IV. Features Co. Ltd. was headed by Harry and Parry who were promoter directors of the
company. Feature allowed its users to update personal information over the internet and
allowed only close friend to have access to their personal information. It allowed its users to
share information like picture, videos, phone number and other personal information.
V. Post – January 2009 it was noticed that the private information of majority of the users
shared by them on both the applications was leaked on the internet. Private pictures and
videos of numerous people, particularly women depicting obscene content went viral on
various social networking sites. An anonymous blog on the internet explicitly stated that the
information might have leaked though Feature on the internet, which could be due to the lack
of appropriate cyber security measures.
VI. Such leak caused severe public disorder and chaos in the country which brought the
Progressive Conservative Association of Indiana (PCA), headed by Sri Devi, into action.
Several protests were arisen due to this leakage of sensitive personal information.
VII. PCA on one the night attacked some of the female employees of Features who were seen
going out to a pub. The employees were wrongfully restrained in a warehouse whole night
and paraded around the streets, the following morning with blackened faces.
VIII. PCA started filing aimless complaints against various internet service providers, companies
that gave domain and server space to Features and Zinc Enterprises for their app installation.

Submission on Behalf of Respondent


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XIII Internal Moot Court Competition, 2018

Subsequently, the police initiated an investigation against all of these persons in order to
counteract the situation.
IX. Central Government issued an order banning both, the Commu app and Features app.
Consequently, the investigating officer entered the headquarters of Features and seized all the
computers, papers and hard disks.
X. Edited pictures of various women were found hanging on clipboard along with several letters
written by angry people lying on the floor. Apart from all this, another torn letter was found
written by Harry to his ex-girlfriend Karry, Stating that he want to change the societal
perspective of womanhood.
XI. On February 2011, Features Co. Ltd. and its directors were charged under various offences.
The video clippings, picture hanging and letters seized by the police authorities were annexed
to the charge sheet as proof. These letter including the private latter of harry were further
published in local newspapers.
XII. Harry and Parry applied to the High Court for Quashing of various Complaints but the court
refused. Harry additionally filed a separate Writ Petition alleging of privacy by the state in
publishing his private letters and hangings.
XIII. Unable to make personal appearances for various petitions, Harry and Parry along with Zinc
Enterprises Ltd. requested to move Supreme Court under Article 139A to transfer the case to
itself.

Submission on Behalf of Respondent


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XIII Internal Moot Court Competition, 2018

STATEMENT OF ISSUES

The issues which were raised before court are as follow;

ISSUE 1

THE CONSTITUTIONALITY OF SECTIONS 67A, 69A AND 69B OF THE INFORMATION TECHNOLOGY
ACT, 2000 (AS AMENDED) AND ALLIED PROVISIONS OF IPC (SECTION 340) & INDECENT
REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986 (SECTION 3 AND 4)?

ISSUE 2

WHETHER THERE WAS ANY UNDUE INFRINGEMENT OF RIGHT TO PRIVACY BY THE SEARCH OF
PRIVATE DOCUMENTS AND LETTERS WHICH WERE NOT MEANT FOR PUBLIC DISCLOSURE?

ISSUE 3

WHETHER THERE IS VIOLATION OF ARTICLE 20(3) IF ANY PRIVATE UNPUBLISHED DOCUMENT/


INFORMATION HAS BEEN USED IN ORDER TO CONVICT THE ACCUSED?

Submission on Behalf of Respondent


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SUMMARY OF ARGUMENT

ISSUE 1

1) The Constitutionality of Section 67-A of Information and Technology Act, 2000 (as
amended).
It is humbly submitted that section 67-A would be constitutional in nature because it
doesn’t violate Article 19(1) (a) of the Indian constitution which is in question here.
Freedom of speech and expression includes the freedom of propagation of ideas, their
publication and circulation1.
Any restriction imposed upon the above mentioned freedom is prima facie
unconstitutional, unless it can be justified under the limitation clause, i.e., Article 19(2) of
the constitution. This clause authorises the State to impose restrictions upon the freedom
of speech only on certain specified grounds. The restrictions can be imposed by the State
when it is made for:
(i) the sovereignty and integrity of India,
(ii) the security of the State
(iii) ,friendly relations with foreign States,
(iv) public order,decency or morality,or
(v) In relation to contempt of court,
(vi) Defamation or incitement to an offence.

And in this case Section 67-A of Information and Technology Act, 2000 comes under the
ambit of Article 19(2) of the constitution. So, Section 67-A of the act would be
constitutional in nature.

2) The Constitutionality of Section 69-A and 69-B of Information and Technology Act,
2000 (as amended).

1
Ramesh Thappar v. State of Madras, AIR 1950 S.C. 124 (India).

Submission on Behalf of Respondent


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XIII Internal Moot Court Competition, 2018

It is humbly submitted that the Section 69-A of the Information and Technology Act,
2000 would be constitutional. Merely because certain safeguards such as those found in
section 95 and 96 of CrPc, 1973 are not available, doesn’t make the rules constitutionally
infirm2.
Section 69-B of the Act is also constitutional in nature.
3) The applicability of Section 340 of the Indian Penal Code, 1860.
It is humbly submitted that here the Section 340 of the Indian Penal Code, 1860 would
not be applicable, as it not fulfilling all the ingredients required for an offence to be
wrongful confinement. In the present case the restraint that is done is not full it is partial.
4) The applicability of Sections 3 & 4 of Indecent Representation of Women
Prohibition Act, 1986.
It is humbly submitted that Section 3 & 4 of Indecent representation of women
prohibition Act, 1986 are applicable here because the facts in the present case is fulfilling
the ingredients of Section 3 & 4 of the Act. In the present case petitioner is the cause for
the publication of private pictures and video which got published because of the leaking
of the information. The private pictures and videos which got leaked morally depraved
the children and women and filled them with sexual urges.
Pictures and videos which got leaked and published is also coming in the ambit of the
definition of the “advertisement” and “indecent representation of women” stated under
Section 2(a) and Section 2(c) respectively of the Indecent Representation of Women
Prohibition Act, 1986.
So, Sections 3 & 4 of the Indecent Representation of Women Prohibition Act, 1986
would be applicable here.

ISSUE 2

This is not an undue infringement of right to privacy as per the section 80 of Information
Technology Act, 2000 states that power of police officer to investigate, in the case of Petronet
Lng. Ltd.v. Indian Petro Group the supreme court held that companies and corporation do not
have fundamental right to privacy and as per section 65A and section 65B of Indian Evidence

2
Shreya Singhal v. Union of India, (2015) 5 S.C.C. 1 (India).

Submission on Behalf of Respondent


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Act, 1872 the evidence which was collected by the investigating officer was fulfilling all the
condition mentioned in both the section.

ISSUE 3

The council from the side of respondent would like submit that there hasn’t been any violation of
article 20(3). The incriminating evidence that were found was seizure during investigation and
those were used as evidence against accused. For the violation of article 20(3) there should be
some kind of compulsion used against the person for incriminating statement but in this case
there hasn’t been any compulsion that was used.

Submission on Behalf of Respondent


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XIII Internal Moot Court Competition, 2018

ARGUMENT ADVANCE

- ISSUE 1 -

THE CONSTITUTIONALITY OF SECTIONS 67A, 69A AND 69B OF THE INFORMATION


TECHNOLOGY ACT, 2000 (AS AMENDED) AND ALLIED PROVISIONS OF IPC (SECTION 340) &
INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986 (SECTION 3 AND 4)?

1) The Constitutionality of Section 67-A of Information and Technology Act, 2000 (as
amended).
It is humbly submitted that the section 67-A of the Information technology Act, 2000 is
constitutional as it is not infringing the Article 19(1) (a) and comes under the ambit of
Article 19(2) of the Indian Constitution. Section 67-A doesn’t imposes restriction on the
Art. 19(1) of the constitution which is right to freedom of speech and
expression.Fundamental Rights or freedoms contained in Art. 19(1) are those great and
basic rights, which are recognized as the natural rights of every citizen. These rights,
though fundamental, are subject to following restriction as mentioned in Art. 19 (2) of the
Indian Constitution:
(i) The sovereignty and integrity of India
(ii) Security of the state
(iii) Friendly relation with the foreign states
(iv) Public order
(v) Decency or morality
(vi) In relation to contempt of court
(vii) Defamation and incitement to an offence

Section 67-A of the act is coming in the ambit of decency and morality, as Section 67-A
of the Information and Technology Act, 2000 talks about the punishment for publishing
or transmitting of material containing sexually explicit act, etc., in electronic form.
Because of the publication of the sexually explicit act, decency and morality of the public
would get hurt, that’s why Section 67-A of Act is made to take care of decency and
morality of the public.

Submission on Behalf of Respondent


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XIII Internal Moot Court Competition, 2018

The exception decency and morality has been engrafted for the purpose of restricting
speeches and publications which tend to undermine public morals3. ““Decency and
Morality” is not confined to sexual morality alone. Decency indicates that the action
must be in conformity with the current standard of behaviour of propriety4”.

The question whether an utterance is likely to undermine decency or morality is to be


determined with reference to the probable effects it may have upon the audience to which
it is to be addressed5. In the present case it is already mentioned that children are morally
depraved and filled with sexual urges due to this leakage of sensitive personal
information.

So, after going through above arguments it is clear that Section 67-A of the Act is
constitutional in nature.

2) The Constitutionality of Section 69-A and 69-B of Information and Technology Act,
2000 (as amended).
It is humbly submitted that section 69-A of the Information and Technology Act, 2000 is
constitutional as merely because certain safeguards such as those found in section 95 and
96 of CrPc, 1973 are not available, doesn’t make the rules constitutionally infirm6.
Section 69-A of the Information and technology Act, 2000 tells about the power to issue
directions for blocking public access of any information through any computer resource,
that:
(1) “Where the Central Government or any of its officer specially authorised by it in this
behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty
and integrity of India, defence of India, security of the State, friendly relations with
foreign States or public order or for preventing incitement to the commission of any
cognizable offence relating to above, it may subject to the provisions of sub-section (2)
for reasons to be recorded in writing, by order, direct any agency of the Government or
intermediary to block for access by the public or cause to be blocked for access by the

3
Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 S.C. 881 (India).
4
Ramesh Yashwant Prabhoo (Dr) v. Prabhakar Kashinath Kunte, (1996) 1 S.C.C. 130 (India).
5
Supra note 3.
6
Supra note 2.

Submission on Behalf of Respondent


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XIII Internal Moot Court Competition, 2018

public any information generated, transmitted, received, stored or hosted in any


computer resource.
(2) The procedure and safeguards subject to which such blocking for access by the public
may be carried out, shall be such as may be prescribed.
(3) The intermediary who fails to comply with the direction issued under sub-section (1)
shall be punished with an imprisonment for a term which may extend to seven years and
shall also be liable to fine7”.
In the case of Shreya Singhal v Union of India8, constitutional bench was of view that the
Rules are not constitutionally infirm in any manner, the bench noted that the Rules
provide for a hearing before a committee set up for the purpose which then looks into
whether or not it is necessary to block such information. It is only when the committee
finds that there is such a necessity, that a blocking order is made," the bench. The
committee comprises government officials who under Rules are first to make all
reasonable efforts to identify the originator or intermediary who has hosted the
information.
Section 69-B of the act is titled power to authorize to monitor or collect traffic data or
information through any computer resource for cyber security. Traffic data has been
defined in the section to mean “any data identifying or purporting to identify any person,
computer system or computer network or any location to or form which communication
is or may be transmitted9.
The section’s objectives are essentially better internet management with the specific
mandate of intrusion or spread of computer containment. Hence under the provision the
competent authority may issue directions for monitoring for a rage of cyber security
purposes including inter alia, identifying or tracking of any person who has breached, or
is suspected of having breached or being likely to breach cyber security.
The section itself contemplates for the formation of rules for its enforcement wherein it
states under section 69-B(3), the procedure and safeguards for monitoring and collecting
traffic data and information, shall be such as may be prescribed.

7
The Information Technology (Amendment) Act, 2008, No.10, Acts of Parliament, 2008 (India).
8
Supra note 2.
9
APAR GUPTA, INFORMATION TECHNOLOGY ACT 264 (Akshay Sapre, 3rd ed. 2016).

Submission on Behalf of Respondent


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XIII Internal Moot Court Competition, 2018

So, all the safeguards and direction has been given which nowhere is violating the
constitution of India10.
3) The applicability of Section 340 of the Indian Penal Code, 1860.
Here Section 340 of IPC, 1860 would not be applicable which says that “whoever
wrongfully restrains any person in such a manner as to prevent that person from
proceeding beyond certain circumscribing limit, is said wrongfully to confine that
person11”. The essential ingredients of the offence of wrongful confinement are:
(i) Wrongful restraint of a person.
(ii) The restraint must be to prevent that person from proceeding beyond certain
circumscribing limits beyond which,
(iii) He/she has right to proceed.

In the present case all the ingredients of wrongful confinement mentioned above are not
getting fulfilled. For an offence to be a wrongful confinement there must be total restraint
not the partial one.But, in the present case the employees after they were wrongfully
restraint paraded around the streets which clearly shows that they were having the option
to parade in the street they were not totally restraint, and for the offence to be wrongful
confinement the restraint must be fully not the partial. But in this case the restraint was
partial. So, here section 340 of the Indian Penal Code, 1860 would not be applicable as
the offence committed here is not fulfilling all the ingredients of the wrongful
confinement.

So, Section. 340 of IPC, 1860 would not be applicable in the present case.

4) The applicability of Sections 3 & 4 of Indecent Representation of Women


Prohibition Act, 1986.
It is humbly submitted that Section 3 & 4 of Indecent representation of women
prohibition Act, 1986 are applicable here. Section 3 of the Act talks about the prohibition
of advertisements containing indecent representation women.

10
APAR GUPTA, INFORMATION TECHNOLOGY ACT 265 (Akshay Sapre, 3rd ed. 2016).

11
Indian Penal Code, 1860, No.45, Acts of Parliament, 1860 (India).

Submission on Behalf of Respondent


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XIII Internal Moot Court Competition, 2018

Section 2(a) of the act defines advertisements as ““advertisement” includes any notice,
circular, label, wrapper or other document and also includes any visible representation
made by means of any light, sound, smoke or gas12” and Section 2(c) of the act defines
indecent representation of women as “indecent representation of women means the
depiction in any manner of the figure of a woman, her form or body or any part thereof in
such a way as to have the effect of being indecent, or derogatory to, or denigrating,
women, or is likely to deprave, corrupt or injure the public morality or morals13”
In the present case pictures and videos which got leaked comes under the term other
document which is used in Section 2(a) of the act and the leakage of the private picture of
the women is morally depriving the children , the pictures which went viral contained the
depicting content. So, it fulfils all the ingredients of the Section 3 of Act and would be
applicable here.
Section 4 of the Act talks about the prohibition of publication or sending by post of
books, pamphlets, etc., containing indecent representation of the women. Here the
photograph which was leaked would come under the ingredients of this section as the
children got morally deprived and filled with the sexual urges.
So, Sections 3 & 4 of the Indecent Representation of Women Prohibition Act, 1986
would be applicable here.
- ISSUE 2 –

WHETHER THERE WAS ANY UNDUE INFRINGEMENT OF RIGHT TO PRIVACY BY THE


SEARCH OF PRIVATE DOCUMENTS AND LETTERS WHICH WERE NOT MEANT FOR PUBLIC
DISCLOSURE?

There was not an any undue infringement of right to privacy as

1. Section 80 of Information Technology Act, 2000, states about the Power of police officer
and other officers to enter, search, etc.14 So, when an oficer went into the headquarters of
the features and seized computers, papers, harddisc and the letter of Harry’s ex-girlfriend
Karry, he did not infringe the right to privacy of the features.

12
Indecent Representation of Women Prohibition Act, 1986 No.60, Acts of Parliament, 1986 (India).
13
Ibid.
14
Apar Gupta Information Technology Act pg.309 (3 rd ed 2006)

Submission on Behalf of Respondent


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2. In the case of Petronet lng. Ltd. v. Indian petro group15 it was held that a claim for breach
of the plaintiff's right to privacy as part of Article 21 of the Constitution of India is not
maintainable. Neither is the plaintiff a person, entitled to the right to life and concomitant
attributes of that right which includes the right to privacy nor is such right, assuming it to
be applicable to companies and corporations, available against non-state individuals, or
“actors”.

In this case the high court of Delhi held that the companies, corporations, non state
individual or actors does not have a right to privacy as a fundamental right. So features
do not have a right to say that their right to privacy gets infringed.

3. Further Section 65A16 of Evidence Act, 1872 states that special provision as to evidence
relating to electronic record, it further stated that contents of electronic records may be
proved through
Section 65B17 of Evidence Act, 1872 states that admissibiity of electronic records, it
further stated that any act information contained in electronic record shall be deemed to
be a document,if the rocords are in mentioned condition i.e.
(a) the computer output containing the information was produced by the computer during
the period over which the computer was used regularly to store or process information for
the purposes of any activities regularly carried on over that period by the person having
lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of
the kind from which the information so contained is derived was regularly fed into the
computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly
or, if not, then in respect of any period in which it was not operating properly or was out
of operation during that part of the period, was not such as to affect the electronic record
or the accuracy of its contents; and

15
2009 SCC OnLine Del 841
16
1 Sudipto Sarkar and V R Manohar Law of Evidence 1466 (17 th ed. 2010)
17
1 Sudipto Sarkar and V R Manohar Law of Evidence 1467 (17 th ed. 2010)

Submission on Behalf of Respondent


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XIII Internal Moot Court Competition, 2018

(d) the information contained in the electronic record reproduces or is derived from such
information fed into the computer in the ordinary course of the said activities.
With the help of this section the evidences collected by the investigating officer was a
primary evidence and the evidences will fulfill all the condition mentioned in section 65B
of Indian Evidence Act, 1872.
So this does not infringe right to privacy of the features.
4. In the case of M P Sharma v. Satish Chandra18 the court held that, there are some terms
for search and seizure, power of search and seizure in any system jurisprudence an
overriding power of the state for the protection of social security and that power in
necessarily regulated by law.
- ISSUE 3 -

WHETHER THERE IS VIOLATION OF ARTICLE 20(3) IF ANY PRIVATE UNPUBLISHED


DOCUMENT/ INFORMATION HAS BEEN USED IN ORDER TO CONVICT THE ACCUSED?

1. The council from the side of responded would like to submit that there was no violation of
article 20(3) in this case. Article 20(3) of the constitution is governed on the maxim “nemo
teneteur seipsum accussare” which mean “no one can be compelled to incriminate
himself.”19 There was no use compulsion in collection of incriminating evidence.
2. In article 20(3), the prohibition is only against the compulsion of the accused to give
evidence against him. To bring the evidence within the inhibition of Article 20(3) it must be
shown that the accused was compelled to make the statement having a material bearing on
the criminality of the maker.20 Analysing the terms in which the guarantee is contained in our
Constitution, it may be stated to consist of the following three components21:
 It is a right pertaining to a person accused of an offence;
 It is a protection against compulsion to be a witness; and
 It is a protection against such compulsion resulting in his giving evidence against
himself.

18
1954 SCR 1077
19
MAMTA RAO, CONSTITUTIONAL LAW 210 (1st ed. 2013).
20
State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808.
21
Delhi Judicial Service Assn. V. State of Gujarat, (1991) 4 SCC 406, 431: AIR 1991 SC 2176.

Submission on Behalf of Respondent


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XIII Internal Moot Court Competition, 2018

The main element that is used of compulsion in obtaining incriminating evidence is not
being fulfilled in this case. Here, edited pictures of various women were found hanging on
clipboards along with several letters lying on the floor. Apart from all this, another torn
letter was found in bits and pieces written by Harry to his ex-girlfriend Karry. 22

3. In M.P. Sharma,23 the supreme court laid down the following;


 Protection was against “compulsion to be a witness against himself.”
 Production by him of a document in his possession being required by the court
constituted a testimonial act of the forbidden type.
 Seizure of document, etc. in his premises by the police on search warrant and their
production at his trial were not his acts and, therefore, not forbidden, i.e. searches
made in pursuance of a warrant issued under section 96 CrPC are not protected.

The letter and photograph which were found in headquarters were without any compulsion and
were collected during the process of investigation and those document were only used as
evidence therefore there was no violation of article 20(3).

4. The principle enshrined in Article 20(3) of the constitution is known as testimonial


compulsion. In Sharma v. Satish24 the Supreme court observed that a direction to the accused
to give specimen writing or finger impression or the issue of any compulsory process for the
production of any document which is reasonably likely to support the prosecution case
infringing Article 20(3) of the constitution. It was a case of seizure of some document from
the premises under a search warrant and it was held that the seizure was not unconstitutional,
under Article 20(3) of the constitution. The above observation of the Supreme Court was
held obiter in a later case before the supreme court in Md. Dastagir v. State of Madras 25 and
reiterated in another Supreme Court case, State of Madras v. Kathi Kalu 26.27
Documents found on the premises can be seized irrespective of the fact that they contain
some statements made by the accused upon his personal knowledge and which when proved,

22
Moot Proposition ¶ 11, Line 3 , 5
23
AIR 1954 SC 300: 1954 Cri Lj 865; State of U.P. V. Boota Singh, (1979) 1 SCC 31; AIR 1978 SC 1770
24
AIR 1954 SC 300.
25
AIR 1960 SC 756.
26
AIR 1961 SC 1808.
27
RATANLAL & DIRAJLAL, THE LAW OF EVIDENCE 1003, (3rd ed. 2011).

Submission on Behalf of Respondent


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may have tendency to incrimination him. The immunity against self-incrimination extends to
incriminating evidence which the accused may be compelled to give, but not to such situation
when incrimination evidence is collected without in any manner compelling the accused.28
Harry was not compelled to give his private letter written to her girlfriend Karry neither he
was compelled for the photographs. The police initiated an investigation against all,
consequently the investigating officer entered headquarter of feature and seized all the
computer, paper and hard disks. Additionally, edited picture of various women were found
hanging on clipboards along with several letter lying on floor. Apart from all this, another
torn letter was found in bits and pieces written by harry to his ex-girlfriend Karrry.29
Therefore the document which was presented as evidence was seizure during investigation so
there was no violation of Article 20(3).

28
V.S. Kuttan Pillai V Ramakrishnan, AIR 1980 SC 185: (1980) 1 SCC 264
29
Moot proposition ¶ 10, 11

Submission on Behalf of Respondent


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PAYER

Wherefore in light of the issue raised, arguments advanced and authorities cited, it is humbly
prayed that this Hon’ble Court be pleased adjudge and declared that:

a. The section 67 A, 69B and 69B of the Information Technology Act, 2000 as well
as the allied provision of IPC (section 339) & Indecent Representation of Women
(Prohibition Act, 1986 (Section 3 and 4) are constitutional.
b. There hasn’t been infringement of right of Privacy i.e. Article 21 of the
constitution by search and publication of private document and letter.
c. And there hasn’t been violation of Article 20(3) by using unpublished private
document to order to convict the accused.

And any other order that this Court may deem fit in the interest of justice, equity and good
conscience.

All of which is humbly prayed

Counsel for the Petitioner

Submission on Behalf of Respondent