3RD TRC NATIONAL MOOT COURT COMPETITION 2024

TEAM CODE

3RD TRC NATIONAL MOOT COURT COMPETITION 2024

BEFORE THE HON’BLE SUPREME COURT OF ASGARD

(APPELATE JURISDICTION)

IN THE APPEAL UNDER ARTICLE 32 OF THE CONSTITUTION OF ASGARD

WRIT PETITION NO.________/2024

IN THE CONNECTED MATTER OF

VIKRANTH…………………………………………………………………………APPELANT

VERSUS

ABISHEK AND ORS.…………………………………………………………. RESPONDENT

MEMORIAL ON BEHALF OF CLAIMANT

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TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................................. 2

TABLE OF ABBREVATIONS ................................................................................................... 3

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

STATEMENT OF JURISDICTION ........................................................................................... 6

ISSUES RAISED......................................................................................................................... 10

SUMMARY OF ARGUEMENTS ............................................................................................. 11

ARGUMENTS ADVANCED ..................................................................................................... 14

ISSUE 1: Whether the present writ petition is maintainable? .................................................. 14

ISSUE 2: Whether filing of charge sheet is an adequate ground for dismissal of an application
under Section 482 for quashing an FIR? .................................................................................. 16
ISSUE 3: Whether Section 102 of the Cr.P.C can be made applicable for seizure of electronic
devices, without any prior warrant being issued; And.............................................................. 19
ISSUE 4: Whether the act of the I.O. in releasing information from the seized devices of ...... 22
the Petitioner to the media violate his right to privacy and if yes, to what relief is ................. 22
the Petitioner entitled? .............................................................................................................. 22
PRAYER ...................................................................................................................................... 24

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TABLE OF ABBREVATIONS

& And
§ Sections
Art./Arts Article/Articles
Id. Idem

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INDEX OF AUTHORITIES

CASES REFERRED

S. NO CASES REFERRED PAGE NO.

1. Arnesh Kumar v. State of Punjab, 2014 (3) SCC (CRI) 449.

2 Balbir Singh v. State of Orissa, 1995CRILJ1762

3. Chandrahas Jagatnarayan Choube v. State of Maharashtra, 2018 SCC

OnLine Bom 5574.
4. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
5. Kamal Shivaji Pokarnekar v. State of Maharashtra, (2019) 14 SCC
350.
6. L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.
7. Lalita Kumari v. State of Uttar Pradesh, 2014 (2) SCC 1.

8. Lallubhai Jogibhai Patel v. Union of India, (1981) 2 SCC 427.

9. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.
10. Puttalakshmi v. State of Karnataka, 2010 SCC OnLine Kar 3380.

11. R.P. Kapur v. State of Punjab, 1960 SCC OnLine SC 21.

12. Whirlpool Corporation. v. Registrar of Trade Marks, (1998) 8 SCC 1.
13. Vinit Kumar V. CBI, AIRONLINE 2019 BOM 1117
14. Virendra Khanna V. State of Karnataka

STATUTES REFERRED

S. NO. STATUES

1. CONSTITUTION OF INDIA
2. THE CODE OF CRIMINAL PROCEDURE, 1973
3. THE INDIAN PENAL CODE, 1860

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4. THE INDIAN EVIDENCE ACT, 1872

BOOKS REFERRED

S. NO. NAME OF THE BOOKS

1. Ratanlal & Dhirajlal: The Indian Penal Code

2. Ratanlal & Dhirajlal The Code of Criminal Procdure
3. The Law of Evidence by Batuk Lal
4. Indian Constitutional Law - MP Jain

ONLINE SOURCES REFERRED

S. NO ONLINE SOURCES

1. LEXIS NEXIS
2. MANUPATRA
3. SCC ONLINE
4. HEINONLINE
5. WESTLAW

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STATEMENT OF JURISDICTION

The Counsel for the Claimant has approached the Hon’ble Supreme Court of Asgard under Article 32
of the Constitution however, it shall be bound by any determination of this Hon'ble Court.

Article 32 of the Constitution:

“32. Right to Constitutional Remedies—

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of
its jurisdiction all or any of the powers exercisable by the Supreme Court under clause
(2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.”

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STATEMENT OF FACTS

TIMELINE IMPORTANT DEVELOPMENTS

 Asgard is the world's biggest democracy and also the world's most populous
country, with a population of over 1.4 billion. The country is seeing rapid growth
in recent years, as entrepreneurs and companies alike are tapping into the
potential of new technological advents. The government too is aiding these
entities so as to use their inventions for its infrastructural and other development
products.
 Vikranth is one of the Directors at FinCo. Pvt. Ltd (“FinCo.”), which provides
investment services (including stockbroking, portfolio management,
consultancy services, etc.) to major companies in major companies in Alfheim,
the financial capital of Asgard.
 As Director, Vikranth plays an instrumental role in identifying companies
looking for investment services and then executing contracts with these
companies to make them part of FinCo.'s expanding clientele
04/1/2023  Vikranth executed a stockbroking agreement with Hammer India Ltd. (“Hammer
India”) whereby as per the terms of the contract, Hammer India will pay Rs.
2,00,00,000/- (Rupees Two Crore Only) with FinCo. and subsequently, FinCo.
will invest it into the securities market and ensure assured returns after a period
of one year.
 Vikranth personally assured Abhishek, the Director of Hammer India, that
FinCo.'s team will ensure that Hammer India's invested amount would increase
at least by 150% during the financial year.
06/10/2023  Utkarsh reported that the value of Hammer India's investment stood at
Rs.7,50,45,000/- (Rupees Seven Crores, Fifty Lakhs, Forty-Five Thousand
Only), which is almost quadruple the invested amount.
06/12/2023  Tried contacting Utkarsh but received no response.
 He tried contacting FinCo. and after multiple trials, he was able to talk to
Vikranth directly, who stated that an audit was ongoing in the company and
hence, the employees including the PoC were unable to respond to Abhishek's
query regarding the investment.
20/12/2023  Abhishek was finally able to connect to Utkarsh and he demanded that a report
be sent to him specifying the value of Hammer India's investment as on
20.12.2023.
 The value of Hammer India's investment stood at Rs.2,20,000/- (Rupees Two
Lakh, Twenty Thousand Only), which is just over 10% of the invested amount.
 Asgard's leading news channels reported that Asgard's securities market
regulator, its Central Bureau of Investigation and other authorities have initiated
an inquiry into the affairs of FinCo., that the company was diverting investors'
funds into its own personal accounts, which amounts to misappropriation of
investor funds.

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26/12/2023  Abhishek suspected that Vikranth had also diverted Hammer India's funds to his
personal account. Abhishek approached the Heven Police Station, Alfheim and
lodged an FIR on 26.12.2023, against Vikranth and FinCo. The FIR was
registered as FIR No. 2535 of 2023 and the charges were under Sections 406 and
420 of the Asgardian Penal Code, 1860 (“APC”).
01/01/2024  The inquiring officers immediately began looking for Vikranth due to multiple
investors lodging FIRs against him and FinCo. and subsequently, were able to
arrest him and immediately took him into custody.
02/01/2024  Vikranth was produced before a magistrate and remanded him to judicial custody
for a period of 15 days.
 Vikranth through his Advocate filed a petition before the High Court for
Alfheim, under Section 482 of the Code of Criminal Procedure, 1973 (“CrPC”),
seeking to quash the FIR No. 2535 of 2023.
04/01/2024  Investigating Officer(“IO”) appointed in the FIR filed by Abhishek conducted a
thorough search of Vikranth's residence in Alfheim and seized his mobile phone
and laptop, based on which he gathered Vikranth's financial statements and other
relevant information, based on which he saw that Vikranth had over Rs. 22 crores
in his bank account.
 IO submitted his chargesheet before the Magistrate under Section 173 of the
CrPC.
 Additionally, the IO also informed these developments to the media vide a press
conference held by him on that same day.
05/01/2024  Vikranth's application under Section 482 of the CrPC came up for admission
before the High Court.
 Respondents' Advocate informed the Court that the IO has submitted the charge
sheet and therefore, the quash petition cannot be entertained by the High Court.
 The Court, convinced by this contention of the Respondents, dismissed the
application on the same day, on the ground that filing of charge sheet has made
the application for quashing of FIR infructuous
09/01/2024  Vikranth filed a Writ Petition before the Supreme Court of Asgard on inter alia
following grounds:
 The Hon'ble High Court ought not to have dismissed the application as
infructuous, as mere filing of charge sheet does not preclude the quash
application from being heard;
 The seizure of Vikranth's laptop and mobile was beyond the scope of Section
102 of the Cr.P.C and was hence illegal.
 The act of the IO in disclosing the information seized from Vikranth's
laptop/mobile to the media blatantly violates his Right to Privacy and also causes
undue prejudice against him before the Trial Court and other authorities before
which criminal proceedings have been instituted against him;
20/01/2024  Writ Petition came up for admission before the Supreme Court and notice was
ordered to be issued to the Respondents.
27/01/2024  Objection was raised by the Respondent as to the maintainability of the Writ
Petition, on the ground that it is challenging the Order of a High Court and hence

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the writ jurisdiction of the Supreme Court could not have been invoked by the
Petitioner, when the alternate relief of appeal is available to him.

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ISSUES RAISED

ISSUE 1: Whether the present writ petition is maintainable?

ISSUE 2: Whether filing of charge sheet is an adequate ground for dismissal of an application
under section 482 for quashing an FIR?

ISSUE 3: Whether section 102 of the cr.p.c can be made applicable for seizure of electronic
devices, without any prior warrant being issued; and

ISSUE 4: Whether the act of the i.o. in releasing information from the seized devices of the
petitioner to the media violate his right to privacy and if yes, to what relief is the petitioner
entitled?

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SUMMARY OF ARGUEMENTS

ISSUE 1: Whether the present writ petition is maintainable?

The writ petition filed under Article 32 before the Hon'ble Supreme Court of Asgard asserts that it is
maintainable to safeguard Mr. Vikranth's fundamental rights, citing the court's inherent power and the
basic structure doctrine. The grounds of the petition highlight violations of Vikranth’s fundamental
rights, including right to equality, right to be heard, right to privacy, and due process principles, which
are crucial for maintaining fairness in legal proceedings. The petitioner argues that the media trial and
tarnishing of Vikranth's image, coupled with the Investigating Officer's irresponsibility, warrant the
court's intervention to protect his rights and ensure a fair trial. The infringement of Vikranth's right to
privacy, as established in the KS Puttaswamy case, further strengthens the case for invoking writ
jurisdiction to enforce fundamental rights. The petitioner emphasizes that the writ jurisdiction is
essential for citizens to preserve their rights, especially in cases where due process is not followed,
making alternative remedies burdensome and ineffective. Lastly, the petitioner contends that Vikranth's
arrest was not in accordance with the principles of the CrPC, highlighting the need for the court's
intervention to rectify procedural violations and ensure justice.

ISSUE 2: Whether filing of charge sheet is an adequate ground for dismissal of an application under
Section 482 for quashing an FIR?

The chargesheet filing justifies quashing the FIR under §482 of CrPC, citing Parbatbhai Ahir v. State
of Gujarat and Bhajan Lal Judgement. FIR lacking offense disclosure can be quashed, per Bhajan Lal
Case. High Court's inherent powers under §482 CrPC apply at any proceeding stage, per R.P. Kapur v.
State of Punjab.Absence of cooperation opportunity from Vikranth renders the case absurd and an abuse
of process, citing Mr. Abhishek Gupta & Anr. v. State of NCT of Delhi & Anr. Even if FIR lacks face
value for constituting an offense, High Court can halt unjust proceedings, per R.P Kapur v. State of
Punjab.Mere chargesheet filing doesn't deter High Court's power to quash FIR under §482 CrPC, as in
Madhu Limaye v. Maharashtra. Vikranth's right to be heard is crucial to prevent process abuse,
following Puttalakshmi v. State of Karnataka. Quashing FIR is valid if it's frivolous, vexatious, or
oppressive, per Kamal Shivaji Pokarnekar v. State of Maharashtra.Multiple FIRs lacking prima facie

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offense don't warrant arrest or petition rejection, following Chandrahas Jagatnarayan Choube v. State
of Maharashtra and Balbir Singh v. State of Orrisa. High Court's powers under §482 CrPC cover
revisional jurisdiction, applicable at any proceeding stage, per State of Haryana v. Bhajan Lal. Absence
of notice under §41 of CrPC violates due process, citing §41(A)(i) and Vikranth's case. Arrest power
should be sparingly used, per Arnesh Kumar v. State of Punjab, not based on multiple FIRs. Due
process, including investigation and notice, is crucial, as seen in Lalita Kumari v. Government of Uttar
Pradesh, to prevent abuse of arrest power and ensure a fair procedure.

ISSUE 3: Whether Section 102 of the Cr.P.C can be made applicable for seizure of electronic devices,
without any prior warrant being issued; And

The seizure of electronic evidence must adhere strictly to the provisions outlined in Section 102 of the
CrPC. This allows for seizure only in emergency circumstances or when there is suspicion of theft or
commission of an offense. Search and seizure can occur either in emergent or normal circumstances.
Emergent circumstances justify immediate action to prevent data loss or equipment destruction. Normal
circumstances require reasonable grounds for urgency to conduct a search without a warrant, with
detailed written justification by the investigating officer. Issuing a notice under Section 91 of CrPC is
necessary before seeking a search warrant, but not mandatory for warrant issuance. The recipient of a
search warrant must comply with it by allowing the search or providing the requested documents. The
court issuing a search warrant must specify the equipment or accounts to be searched, the nature of the
search, the location, and prohibit sharing the obtained data with third parties to protect privacy.
Electronic equipment presents unique challenges as it often requires passwords or biometrics to access
data, which must be provided by the accused or the person in charge.Section 100 of CrPC mandates
cooperation in conducting searches, which extends to providing access to electronic devices by
providing passwords or biometrics.The procedure involves obtaining a search warrant from the court,
with the accused providing access credentials. Alternatively, the investigating agency can issue a notice
warning of adverse inferences if access is not provided, allowing the accused to avoid such
consequences by cooperating. In the case of Vikranth, the direct seizure and search of electronic devices
without following legal procedures render the seizure of electronic evidence invalid and illegal.

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ISSUE 4: Whether the act of the I.O. in releasing information from the seized devices of the
Petitioner to the media violate his right to privacy and if yes, to what relief is the Petitioner entitled?

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ARGUMENTS ADVANCED

ISSUE 1: Whether the present writ petition is maintainable?

1. It is humbly submitted that the writ petition filed under Article 32 before the Hon'ble Supreme
Court of Asgard is maintainable as it ensures that the fundamental rights of Mr. Vikranth
(hereinunder: petitioner) is safeguarded. The Supreme Court has inherent power to issue writs
to the citizens of Asgard as also observed in the case of L. Chandra v. Union of India.1 This
allows the enforcement of the rights of the citizens given by the Indian Constitution and forms
a part of the basic structure doctrine which cannot be altered or eliminated.

2. The petitioner further contends that the grounds of the present writ petition involve the issues
of the violation of Vikrant0h’s fundamental right which is inclusive of right to equality. It is
observed in the case of Lallubhai Jogibhai Patel v. Union of India2 that if the grounds of the
second writ petition are different from the first, then it can be issued before the Hon'ble Supreme
Court. Further, if certain additional grounds were missed, the second writ petition is issuable.
In this case, Mr. Vikranth, the right to be heard, the right to privacy and the seizure of devices
are under question.

3. The petitioner humbly submits that if there is a violation of the principles of natural justice, the
writ is maintainable. In the English case of King v. Post Master General, ex-parte Carmichael
a writ was maintained despite the alternative of an appeal. Vikranth was not allowed to prove
his innocence and was remanded to judicial custody for 15 days which undermined his right to
show his cooperation towards the criminal procedure. It is established that if natural justice is
denied before a court of summary, the Higher Court should admit the writ.

4. It is humbly submitted that the trial of the court is not synonymous with media trial. Mr.
Vikranth’s image has been tarnished because of the irresponsibility on the part of the
Investigating Officer.

1
L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.
2
Lallubhai Jogibhai Patel v. Union of India, (1981) 2 SCC 427.

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5. The petitioner humbly submits that due to the irresponsibility of the Investigating Officer, the
right to privacy safeguarded by the Indian Constitution was infringed. In the case of KS
Puttuswamy v. Union of India,3 the right to privacy is a fundamental right under Article 21.
Infringement of which allows the petitioner to file for a writ under the Supreme Court. The writ
jurisdiction is exercised by the Hon’ble Supreme Court to ensure the enforcement of
fundamental rights.

6. The petitioner further submits that the writ jurisdiction is available to the citizens of India to
ensure their rights are preserved. In the case of Sohan Lal v. Union of India,4 it was observed
that the maintainability of the remedy is a question of fact, however, in the case of Mr. Vikranth,
the writ falls under the jurisdiction of the court to allow it and hear the matter under the same.

7. It is humbly submitted that since the due process principle was not followed, alternate remedies
are unduly burdensome. The case of Vikranth does not justify the arrest, the bank details
becoming public knowledge and the seizure of the devices without any offence being created
prima facie, the writ jurisdiction was invoked.

8. The petitioner submits that the arrest of Vikranth is without the principles of the jurisdiction of
the CrPC (hereinunder: CrPC). As held in Whirlpool Corporation v. Registrar of Trademarks 5,
Mumbai, the writ jurisdiction cannot operate as a bar if there has been a violation of the order
or the proceedings of an Act. Mr. Vikranth’s arrest did not follow the procedure of issuance of
notice laid down in §41 of the Code of Criminal Procedure, 1973.

3
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
4
Sohan Lal v. Union of India, 957 SCR 738.
5
Whirlpool Corporation. v. Registrar of Trade Marks, (1998) 8 SCC 1.

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ISSUE 2: Whether filing of charge sheet is an adequate ground for dismissal of an application under
Section 482 for quashing an FIR?

1. It is humbly submitted before the Hon’ble Court that the filing of the chargesheet is an adequate
ground for quashing the FIR by the High Court by exercising its inherent powers under §482 of
the CrPC. §482 of the CrPC preserves the inherent powers of the High Court to prevent the
abuse of the process of any court and otherwise to secure the ends of justice as observed and
laid down in the leading case of Parbatbhai Ahir v. State of Gujarat referring to the Bhajan Lal
Judgement.

2. The petitioner humbly contends that if the FIR does not disclose the commission of an offense,
then the FIR and charge sheet could be quashed, as observed in the Bhajan Lal Case.

3. It is humbly submitted that in the case of R.P. Kapur v. State of Punjab6, the Supreme Court
observed that the inherent powers of the High Court under §482 CrPC can be exercised at any
stage of the proceedings, even after the charge sheet is filed if the circumstances warrant.

4. The petitioner further contends that in the instant case of Vikranth was not given the option to
show his cooperation with the investigating procedure, thereby making the entire case a product
of absurdity and sheer abuse of the criminal process, Mr. Abhishek Gupta & Anr. v. State of
NCT of Delhi & Anr.7 observed the same.

5. The petitioner contends keeping in mind R.P Kapur v. State of Punjab8 that even if the FIR is
taken at face value and no offense is constituted and the question of appreciating the evidence
does not arise from it, in such a case the High Court can manifest that it is unjust to allow for
the criminal process against the accused, in this case, Vikranth.

6. It is humbly submitted that the mere filing of a chargesheet by the Investigating Officer does
not form a ground for the High Court to not admit the petition for quashing the FIR. The

6
R.P. Kapur v. State of Punjab, 1960 SCC OnLine SC 21.
7
Abhishek Gupta & Anr. v. State of NCT of Delhi & Anr, (2019) 11 SCC 706.
8

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provisions laid down under the CrPC do not affect the inherent power preserved in §482 of the
CrPC for the High Court as observed in Madhu Limaye v. Maharashtra.9

7. Further, the petitioner contends that the right of Vikranth to be heard by the High Court
constitutes abuse of the process of the Court, as observed in Puttalakshmi v. State of
Karnataka.10 To allow the continuance of such proceedings amounts to the failure of ends of
justice according to §482 of the CrPC.

8. It is also submitted that the FIR should be quashed if it causes frustration and does not have any
face value. In the case of Vikranth, no opportunity to show his willingness to cooperate was
given and the due process of the criminal procedure was undermined. Therefore, giving the
power to the High Court to quash the FIR on the grounds of the process being frivolous,
vexatious or oppressive, as observed in Kamal Shivaji Pokarnekar v. State of Maharashtra.11

9. Further, it is also contended that several FIR applications filed do not allow due process to be
secure. In the case of Vikranth even though multiple FIRs were lodged, there was no prima facie
offence. As observed in the case of Chandrahas Jagatnarayan Choube v. State of
Maharashtra and Balbir Singh v. State of Orrisa,12 multiple applications that do not prima
facie constitute an offence are no grounds for arrest or non-admissibility of the writ petition.
The plight of the party should be protected from an irresponsible claim.

10. The petitioner contends that dismissal of the petition immediately after the filing of the charge
sheet makes the powers of the High Court nugatory. As observed in the case of the State of
Haryana v. Bhajan Lal, the powers of the High Court under §482 of the CrPc also cover the
revisional power of the High Court. The High Court has jurisdiction to exercise its powers at
any stage of the proceedings.

11. It is humbly submitted that the notice under §41 of the CrPC would require that a person appear
before the police officer for investigation at a specified place and time. §41(A)(i) of the CrPc
states that when a police officer receives information about the commission of a cognizable

9
Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.
10
Puttalakshmi v. State of Karnataka, 2010 SCC OnLine Kar 3380.
11
Kamal Shivaji Pokarnekar v. State of Maharashtra, (2019) 14 SCC 350.
12
Chandrahas Jagatnarayan Choube v. State of Maharashtra, 2018 SCC OnLine Bom 5574; Balbir Singh v. State of Orissa,
1995CRILJ1762

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offence that is punishable with imprisonment for a term of up to 7 years, he or she may issue a
notice to the person against whom the information has been received. Vikranth was not served
with a notice.

12. The petitioner further contends that the power of arrest should be exercised sparingly. In the
case of Arnesh Kumar v. State of Punjab, the power of arrest was highlighted.13 As under §41
of the CrPc the power should only be exercised if necessary. Thereby making the grounds of
multiple FIRs as a cause of arrest is absurd.

13. The petitioner humbly submits that due process in a criminal procedure is of utmost importance.
As in the case of Vikranth, five days without an investigation or a notice of the arrest was made,
due process was undermined. In the case of Lalita Kumari v. Government of Uttar Pradesh,
mandatory registration of the FIR was observed.14 The police must conduct a preliminary
inquiry to determine the varsity of the complaint before making an arrest.

13
Arnesh Kumar v. State of Punjab, 2014 (3) SCC (CRI) 449.
14
Lalita Kumari v. State of Uttar Pradesh, 2014 (2) SCC 1.

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ISSUE 3: Whether Section 102 of the Cr.P.C can be made applicable for seizure of electronic devices,
without any prior warrant being issued; And

1. It is humbly submitted before the Supreme court of Asgard when seizure of electronic of
evidence is not valid as seizure can be done under 102 crpc only when if there are and by
emergency circumstances, the police officer could seize the equipment or if there is a suspicion
that either the police officer could sieze the equipment the object has been stolen or which create
suspicion of commission of any offence

2. It is humbly submitted before the court that the under Search and seizure can be done in 2
possibilities either emergent circumstances or in normal circumstance.

o In emergent circumstances it may happen that there may arise certain emergencies or
exigencies for a search of a smartphone or electronic equipment to be carried out like if
the data is going to be immediately destroyed, there is a danger of equipment itself being
destroyed, the possibility of the equipment not being available, etc. 15

o In normal circumstances that may happen there must exist reasonable grounds for
believing that it is necessary for carrying out a search of the Smartphone or Electronic
Equipment with expediency and that if such a search is not conducted immediately, the
conduct of the offense may be expedited and/or the evidence thereof be lost. In such a
scenario there must be a recording in writing made by the Investigating officer,
specifying in writing as far as possible the reasons for conducting such a search without
a warrant. The objective satisfaction by such officer of the emergent nature of the search
has to be recorded in writing in sufficient detail. Unless these conditions are fulfilled, a
search without a warrant would be without jurisdiction, these conditions are necessary
to safeguard the interest of the person and or organization searched, more so when a
search so conducted would also impinge on the right to privacy of such a person. 16

o The copies of any record made to conduct such a search would have to be sent to the
Magistrate empowered to take cognizance of an offence and a record of the same.

15
Virendra Khanna V. State of Karnatka, MANU/KA/0728/2021, ¶ 12.13.
16
Virendra Khanna V. State of Karnatka, MANU/KA/0728/2021, ¶ 12.20.

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o a search without reasons and without following the procedure may be illegal, the
illegality of the search would not make any seizure made during the search inadmissible
as held by the Hon'ble Apex Court in the case of Dr. Pratap Singh vs. Director of
Enforcement Foreign Exchange Regulation and others reported in
MANU/SC/0202/1985 : (1985) 3 SCC 72. 17

3. The investigating officer could issue a notice under Section 91 of Cr.P.C., calling upon the
accused or any other person to produce any particular document or equipment as stated above.
If not so produced, a search warrant could be sought for from the Court of law. Be that as it may
without issuance of a notice under Section 91 of Cr.P.C., a search warrant could be issued
inasmuch as the issuance of a notice under Section 91 of Cr. P.C. is not a pre-condition for
issuance of a search warrant under Section 93 of Cr. P.C.18Once a search warrant is issued and
received by the accused or any other person it would be the obligation of such person to permit
the search and/or to provide document or thing called upon.

4. While issuing a search warrant, the concerned Court would have to indicate as to what smart
phone, electronic equipment or email account is to be searched. The role of the same in the
crime, the nature of search to be done, place where the search has to be done as also specifically
interdict the persons carrying out the search from disclosing the material and/or data procured
during the course of the said search to a third party. So as to preserve the privacy of the
concerned. 19

5. The provisions referred to and mentioned deals with search and seizure. Electronic equipment
occupies a slightly different position, in that it is not only the seizure of the phone and
equipment, but once it is seized, the said equipment is required to be opened more often than
not such equipment are locked by password, passcode or biometrically. Thus, for the purpose
of opening and/or accessing the data on the said equipment, it would be required for the accused
or person in charge of the said equipment to provide a password, passcode or open the same
using the biometrics.20

17
Virendra Khanna V. State of Karnatka, MANU/KA/0728/2021, ¶ 12.19.
18
Virendra Khanna V. State of Karnatka, MANU/KA/0728/2021, ¶ 12.21.
19
Virendra Khanna V. State of Karnatka, MANU/KA/0728/2021, ¶ 12.22.
20
Virendra Khanna V. State of Karnatka, MANU/KA/0728/2021, ¶ 12.23.

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6. As mentioned above, in terms of Section 100 of Cr.P.C., a person in charge of a closed place is
also required to permit such search and, in fact, facilitate such search. Applying the said
principle to a smartphone, electronic equipment or an email account, it would but be required
for the accused or a person in charge of electronic equipment to provide the password, passcode
or biometrics to open the Smartphone, computer equipment or email account 21.

7. Thus the procedure that would have to be followed would be as under:

o It would be required for the prosecution to approach the Court to seek a search warrant
to search the smartphone and or e-mail account. Once a search warrant is issued, it is
22
upto the Petitioner-accused to provide the password, passcode, biometrics etc.,

o The investigating agency could also serve a notice on the accused indicating that in the
event of the accused not furnishing the said password, passcode, biometrics etc., an
adverse inference would be drawn against the accused as regards the aspects notified in
the said notice. The accused can then, in order to avoid the adverse inference from being
drawn, furnish the password, passcode or biometrics to the Investigating authorities. 23

8. It is humbly submitted before the court that the submitted that in the case of Vikranth the io
directly seized the electronic devices and searched through it not following that the procedure
as set by law making the seizure of electronic evidence invalid and illegal

21
Virendra Khanna V. State of Karnatka, MANU/KA/0728/2021, ¶ 12.24.
22
Virendra Khanna V. State of Karnatka, MANU/KA/0728/2021, ¶ 16.9.
23
Virendra Khanna V. State of Karnatka, MANU/KA/0728/2021, ¶ 16.10.

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ISSUE 4: Whether the act of the I.O. in releasing information from the seized devices of
the Petitioner to the media violate his right to privacy and if yes, to what relief is
the Petitioner entitled?

1. It is humbly submitted that Vikranths privacy has been violated. The Investigating Officer
conducted a thorough search of Vikranths residence in Alfheim and seized his mobile phone and
laptop, based on which he gathered Vikranth's financial statements, which were revealed in the
media. The scope of Article 21 under the Indian Constitution includes the right to health, the right
to a clean environment, the right to sleep peacefully, the right to livelihood, the right to free legal
aid and speedy trial, and the right to privacy. This establishes the breach of privacy under Article
21 of the Indian Constitution.

2. The petitioner contends that Vikranth did not consent to give up his devices. In Kharak Singh v.
State of Uttar Pradesh, the Hon’ble Supreme Court held that the right to life under Article 21 does
not merely mean animal existence but it also means the right to enjoy life with all the limbs and
faculties of a human body.24 It includes access to all the means that make life worth living. A person
cannot be said to live his life when someone is keeping a continuous watch on him, even though he
is not physically confined. Thus, Vikranths fundamental right under Article 21 has been violated.

3. The petitioner further contends that the right to privacy forms an intrinsic part of the right to life
and liberty. The term liberty in the Article means that an individual has control of all aspects of his
life and enjoys his personal space without any unnecessary interference. The Hon’ble Supreme
Court in the case of Maneka Gandhi v. Union of India observed and widened the scope of liberty.25
Anything that is there to curtail liberty should be backed by a legislative procedure, which is free
from arbitrariness and is just, fair, and reasonable. Further, in the case of K.S. Puttaswamy v. Union
of India, the Hon’ble Supreme Court elevated the right to privacy as an intrinsic part of the right to
life and personal liberty. The information made public violated Vikranth's rights.

4. The petitioner further contends that the invasion of privacy must be in proportion to the need for
interference. This was observed in the leading case of KS Puttaswamy, by Hon’ble Chief Justice D.

24
Kharak Singh v. The State Of U. P. & Others, 1964 SCR (1) 332.
25
Maneka Gandhi v. Union Of India, 1978 SCR (2) 621.

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Y. Chandrachud, then Justice. The test lays down the following criteria to be fulfilled in order to
qualify as an exception to the right to privacy:

1. Such an act of interference must be sanctioned by the law, and there should be a due legal
procedure for such interference. The law and the legal procedure must be just, fair, and
reasonable, and they must be free from manifest arbitrariness.

2. The law should be backed by a legitimate and reasonable state’s interest so as to provide
unnecessary state interference.

3. The method, nature, and quality of the interference must be proportionate to the objects,
needs, and purposes sought to be fulfilled by the law.

5. In Vikranths case, the procedure set out by law was not followed for investigation and further, the
press conference invaded his privacy without a prima facie offence being formed.

6. The petitioner contends that even though the right to privacy is not absolute, it should be backed by
the due process of law. In the instant case of Vikranth, due process was not followed. As observed
in Vineet Kumar v. CBI the data so collected by the Investigating Officer should not have been
made public. Vikranths right to privacy was invaded by the Investigating Officer following which
he was not only under the court trial but also media trial which tainted his image without having
committed an offence.

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PRAYER

Whereof in the light of the issues raised, arguments advanced, and authorities cited, it is most humbly
prayed before the Honorable Supreme Court of Asgard that this Honorable Court may be pleased to
hold that:

I. Allow the present Writ Petition in favor of the Petitioners

II. Declare that filing of a charge sheet is not an adequate ground for dismissal of an application
under Section 482 for quashing an FIR.

III. Declare that Section 102 of the Cr. P.C. cannot be made applicable for the seizure of electronic
devices, without any prior warrant being issued.

IV. To lay down the principle of the Right to be Forgotten for the act of the Investigating Officer in
releasing information from the seized devices of the Petitioner to the media that violates his
right to privacy.

AND/OR

Pass any other order it may deem fit in the interest of justice, equity, and good conscience.

All of which is most respectfully prayed and humbly submitted.

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