BEFORE THE HON’BLE SUPREME COURT OF INDIA

REVIEW PETITION NO: ___/ 2021

UNDER ARTICLE 137 OF THE CONSTITUTION OF INDIA

IN THE MATTER OF:

Arpith ... Appellant

VERSUS

State of West Bengal. ... Respondent

MEMORIAL FOR THE PETITIONER

MEMORIAL FOR THE PETITIONER Page no:
MEMORIAL FOR THE PETITIONER Page no:
1. Batuk Lal, Law of Evidence, (21st Ed., Central Law Agency, 2016)
2. Dr. CK Parikh, Textbook of Medical Jurisprudence, Forensic Medicine & Toxicology, (6th
Ed., CBS Publisher’s 2014)
3. Dr. D.D. Basu, Commentary on Constitution of India, (8th Ed., Lexis Nexis, 2010)
4. Dr. K.S. Narayana Reddy, The Essentials of Forensic Medicine & Toxicology (33rd Ed., J.P.
Publications, 2010)
5. H.M. Seervai, Constitutional Law of India, (4th Ed., Universal Law Publication,2015)
6. J.P. Modi’s , A Textbook of Medical Jurisprudence & Toxicology, (25th Ed., Lexis Nexis ,
2016)
7. Justice UL Bhatt, Lectures on Indian Evidence Act,(Universal LawPublication,2015)
8. KD Gaur, Criminal Law: Cases & Materials, (6th Ed., Lexis Nexis, 2009)
9. KD Gaur, The Indian Penal Code, (15th Ed., Law Publishers India Pvt. Ltd., 2016)
10. MP Jain, Indian Constitutional Law, ( 7th Ed. , Lexis Nexis, 2016)

1. THE CODE OF CRIMINAL PROCEDURE, 1973

2. THE INDIAN EVIDENCE ACT, 1872
3. THE INDIAN PENAL CODE, 1860
4. THE JUVENILE JUSTICE ACT 2000

MEMORIAL FOR THE PETITIONER Page no:

1) Salili bali vs. union of India w.p. no. 10 of 2013
2) Upendra Pradhan vs. state of Orissa cra. Appl. No. 2174 of 2009
3) Ram narin vs. state of up cr. Misc. pit. No. 7526 of 2015
4) Hari ram vs. state of rajasthan cr. Appl. No. 907 of 2009
5) Babloo singh vs. state of up cr. Appl. No. 763 of 2003
6) Raju vs. state of Haryana cr. Appl. No. 281 of 2010
7) Munna vs. state scc 154 (2) 1989
8) Dharanbir vs. state cr. Appl. No. 860 of 2010
9) Gopinath gosh vs. state of Bengal scc 228 of 1984
10) Alwzar Hossain vs. state of Bengal scc 489 (10) 2012
11) Pradip kumar vs. state of up scc 419 (4) 1995
12)The State Of West Bengal vs Anwar All Sarkar1952 AIR 75, 1952 SCR 284
13) Ramana Dayaram Shetty Vs International Airport Authority Of India And Others (1979
AIR(SC) 1628 )
14) Anwar Ali Sarkar vs The State Of West Bengal AIR 1952 Cal 150
15) Dalmia Cement (Bharat) Ltd. v. Union of India, (1996) 10 SCC 104
16)T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.
17) State of Punjab v. Balkaran Singh, (2006) 8 SCC 481, 655
18)Tahseen poonawalla v union of india
19)Bandhua Mukti Morcha v. Union of India & Ors., AIR 1984 SC
20) Romesh Thappar vs The State Of Madras 1950 AIR 124, 1950 SCR 594
21) Dr. Subramanian Swamy v. Raju S.L.P. (Crl) No.1953 of 2014
22) S.P. Gupta v. President of India & Ors., AIR 1982 SC 149
23) Union for Democratic Rights v. Union of India & Ors., AIR 1982 SC 1473
24) Sheela Barse v. Union of India 16AIR 1986 SC 1773
25) M/S SHARMA TRANSPORT REP.BY SHRI D.P.SHARMA Vs. GOVERNMENT OF A.P.
& ORS.(AIR 2002 SC 322

STATEMENT OF JURISDICTION

MEMORIAL FOR THE PETITIONER Page no:

THE COUNSEL FOR THE PETITIONER HEREBY HUMBLY SUBMIT TO THIS
HON’BLE COURT’S JURISDICTION UNDER ARTICLE 137 OF THE
CONSTITUTION.

THE PRESENT MEMORANDUM SETS FORTHS THE FACTS, CONTENTIONS

AND ARGUMENTS

STATEMENT OF FACTS

MEMORIAL FOR THE PETITIONER Page no:

Arpith was seventeen years old in 1995 when he forcibly
kissed Pinki, a sixteen years old girl in his school he was
very attracted to.

Pinki filed a case of sexual assault against him. After

seventeen years of the case pending before a Magistrate,
he was convicted and sentenced to six months of simple
imprisonment in 2012 and a fine of Rs.1000/-.

In this period, both Arpith and Pinki had settled well in

their respective families after marriage and both have
their own children.

Arpith has a steady job and this imprisonment will cause

him his job. His appeal to the Sessions Court and the High
Court was dismissed in quick succession on the ground
that offences against women were on the rise and needed
to be dealt with severe punishment.

Arpith filed an appeal before the Supreme Court on

sentence.He prayed for setting aside of the sentence of
imprisonment under the IPC and sought release on
probation either under the Probation of Offenders Act
1958 or under the Juvenile Justice Act 2000.
MEMORIAL FOR THE PETITIONER Page no:
The Supreme Court in June 2018 dismissed the appeal
and confirmed the order of the magistrate. Arpith has filed
a review petition against this decision praying for setting
aside of the punishment imposed on him.
Arpith is arguing that the sentence of imprisonment is
against all principles of sentencing and also not in
consonance with the provisions of the Juvenile Justice Act
2015 under which his offence is classified as a petty
offence.

ISSUES RAISED

1) WHETHER THE REVIEW PETITION FILED IS MAINTAINABLE OR NOT.

2) WHETHER ITS UNLAWFUT TO KEEP JUVENILE CONVICT IN THE JAIL.

MEMORIAL FOR THE PETITIONER Page no:

 UNDER THE JUVENILE JUSTICE ACT, 2000 (JJ ACT) .

3) WHETHER ITS UNLAWFUL TO KEEP JUVENILE CONVICT IN THE JAIL

UNDER THE PROBATION OF OFFENDERS ACT 1958

SUMMARY OF ARGUMENTS

1) WHETHER THE REVIEW PETITION FILED IS MAINTAINABLE OR NOT?

It is humbly submitted to this Hon’ble Court that The review petition, which has been filed by
the review petitioner to review the judgment is referable to Article 137 of the Constitution read
with Order XLVII of Supreme Court Rules, 2013.

MEMORIAL FOR THE PETITIONER Page no:

 2) WHETHER ITS UNLAWFUT TO KEEP JUVENILE CONVICT IN THE JAIL.
UNDER THE JUVENILE JUSTICE ACT, 2000 (JJ ACT) .

Section 15(f) of Juvenile Justice Act, 2000 states that - Order that may be passed regarding
juvenile and in that clause
(f) direct the juvenile to be released on probation of good conduct and placed under the care of
any fit institution for the good behaviour and well-being of the juvenile for any period not
exceeding three years

3) WHETHER ITS UNLAWFUL TO KEEP JUVENILE CONVICT IN THE JAIL

UNDER THE PROBATION OF OFFENDERS ACT 1958

Section 4 in The Probation of Offenders Act, 1958- 4. Power of court to release certain offenders
on probation of good conduct:

When any person is found guilty of having committed an offence not punishable with death or
imprisonment for life and the court by which the person is found guilty is of opinion that, having
regard to the circumstances of the case including the nature of the offence and the character of
the offender, it is expedient to release him on probation of good conduct, then, notwithstanding
anything contained in any other law for the time being in force, the court may, instead of
sentencing him at once to any punishment direct that he be released on his entering into a bond,
with or without sureties, to appear and receive sentence when called upon during such period,
not exceeding three years, as the court may direct, and in the meantime to keep the peace and be
of good behaviour.

ARGUMENTS ADVANCED

1) WHETHER THE REVIEW PETITION FILED IS MAINTAINABLE OR NOT?

The review petition, which has been filed by the review petitioner to review the judgment is
referable to Article 137 of the Constitution read with Order XLVII of Supreme Court Rules,
2013. Article 137 of the Constitution provides as follows:-

MEMORIAL FOR THE PETITIONER Page no:

“137. Review of judgments or orders by the Supreme Court.-- Subject to the provisions of any
law made by Parliament or any rules made under article 145, the Supreme Court shall have
power to review any judgment pronounced or order made by it.”

The Rules have been framed under Article 145 of the Constitution namely “The Supreme Court
Rules, 2013” in which Order XLVII deals with the review. Order XLVII Rule 1 provides:-

“Order XLVII Review 1. The Court may review its judgment or order, but no application for
review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII,
rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the
face of the record. The application for review shall be accompanied by a certificate of the
Advocate on Record certifying that it is the first 9 application for review and is based on the
grounds admissible under the Rules.

2) WHETHER ITS UNLAWFUT TO KEEP JUVENILE CONVICT IN THE JAIL.

UNDER THE JUVENILE JUSTICE ACT, 2000 (JJ ACT).

The object behind treating the persons under 18 years of age as juveniles is to ensure their
rehabilitation in society and to enable the young offenders to become useful members of the
society in later years, which sought interference with the age of juvenility under the Juvenile
Justice Act, 2000 (JJ Act).(A)

Highlighting the section 15(e ) and (f) and section 21:

15. Order that may be passed regarding juvenile.—

MEMORIAL FOR THE PETITIONER Page no:

(1) Where a Board is satisfied on inquiry that a juvenile has committed an offence, then,
notwithstanding anything to the contrary contained in any other law for the time being in force,
the Board may, if it so thinks fit,—
(a) allow the juvenile to go home after advice or admonition following appropriate inquiry
against and counselling to the parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counselling and similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen
years of age and earns money;

(e) direct the juvenile to be released on probation of good conduct and placed under the
care of any parent, guardian or other fit person, on such parent, guardian or other fit
person executing a bond, with or without surety, as the Board may require, for the good
behaviour and well-being of the juvenile for any period not exceeding three years;

(f) direct the juvenile to be released on probation of good conduct and placed under the
care of any fit institution for the good behaviour and well-being of the juvenile for any
period not exceeding three years;

Section - [21. Prohibition of publication of name, etc., of juvenile or child in need of care

and protection involved in any proceeding under the Act.—
(1) No report in any newspaper, magazine, news-sheet or visual media of any inquiry regarding a
juvenile in conflict with law or a child in need of care and protection under this Act shall disclose
the name, address or school or any other particulars calculated to lead to the identification of the
juvenile or child nor shall any picture of any such juvenile or child be published: Provided that
for reasons to be recorded in writing, the authority holding the inquiry may permit such
disclosure, if in its opinion such disclosure is in the interest of the juvenile or the child.

Since the incident occurred more than 18 years ago and at that time the appellant as well as the
complainant were about 16 years of age, the court should not send the appellant to jail at such a belated
stage. Considering the fact that the appellant was juvenile in view of the provisions of Juvenile Justice
Act, 2000 (hereinafter referred to as the JJ Act 2000), he ought to have been tried before the Juvenile
Justice Board and not by the criminal court, as was done.

Even otherwise, considering the time gap of 18 years and the fact that the appellant as well as the
complainant have settled in life and both of them are married and have children, their lives should not be
disturbed.

Learned counsel for the petitioner pleads for leniency on the ground that the trial has gone on for
a long time: furthermore, he has no previous criminal history and that he may lose his job.

MEMORIAL FOR THE PETITIONER Page no:

Case law 1:
In Musa Khan & Ors. v. State of Maharashtra, AIR 1976 DV 2566, this Court observed that the purpose
of the provisions of the Act 1958 is to reform the juvenile offenders though that was a case
of Section 149 IPC and the court held that culpable liability does not arise from mere presence in the
assembly and even participation does not necessarily lead to the conclusion that he joined that
unlawful assembly willingly.

Case law 2:
This Court in Karamjit Singh v. State of Punjab, (2009) 7 SCC 178, to which one of us (Dr. B.S.
Chauhan, J.) was a member of the Bench, after considering various earlier judgments and
particularly Om Prakash & Ors. v. State of Haryana, (2001) 10 SCC 477 and Manjappa v. State of
Karnataka, (2007) 6 SCC 231; held that a relief under the Act 1958 should be granted in the offences
which were not of a very grave nature or where the mens rea is absent.

Case law 3:
In State of Himachal Pradesh v. Dharam Pal, (2004) 9 SCC 681, this Court considered the appeal of the
State of Himachal Pradesh wherein the benefit of the Act 1958 had been given to the accused who was
held guilty for offence under Section 376/511 IPC for attempt to commit rape.

----------------------------------------------------------------------------------------------
1) In Musa Khan & Ors. v. State of Maharashtra, AIR 1976 DV 2566
2) This Court in Karamjit Singh v. State of Punjab, (2009) 7 SCC 178
3) In State of Himachal Pradesh v. Dharam Pal, (2004) 9 SCC 681

3) WHETHER ITS UNLAWFUL TO RELEASE PETITIONER ON

PROBATION UNDER THE PROBATION OF OFFENDERS ACT
1958

Section 4 in The Probation of Offenders Act, 1958- 4. Power of court to release certain offenders
on probation of good conduct:

When any person is found guilty of having committed an offence not punishable with death or
imprisonment for life and the court by which the person is found guilty is of opinion that, having
regard to the circumstances of the case including the nature of the offence and the character of
the offender, it is expedient to release him on probation of good conduct, then, notwithstanding
anything contained in any other law for the time being in force, the court may, instead of
sentencing him at once to any punishment direct that he be released on his entering into a bond,
with or without sureties, to appear and receive sentence when called upon during such period,
MEMORIAL FOR THE PETITIONER Page no:
not exceeding three years, as the court may direct, and in the meantime to keep the peace and be
of good behaviour:

Even otherwise, considering the time gap of 18 years and the fact that the appellant as well as the
complainant have settled in life and both of them are married and have children, their lives should not be
disturbed. In all circumstances, the court should give the benefit to the appellant under the provisions of
Probation of Offenders Act, 1958 (hereinafter referred to as the Act 1958). Therefore, the appeal deserves
to be allowed.

Case law 1:
Mohamed Aziz Mohamed Nasir v. State of Maharashtra, AIR 1976 SC 730, wherein the benefit of the
Act 1958 was given observing further that even if such plea had not been raised before the court below, it
can be raised for the first time before this court. That was a case under Section 379 r/w
Section 34 IPC and the charge against the said appellant was snatching two sarees from one Govind
who was carrying them from the shop of his master to that of a washer and dyer.

Since the incident occurred more than 18 years ago and at that time the petitioner as well as the
complainant were about 16 years of age, the court should not send the petitioner to jail at such a belated
stage. Learned counsel for the petitioner pleads for leniency on the ground that the trial has gone on for
a long time: furthermore, he has no previous criminal history and that he may lose his job.

------------------------------------------------------------
4 .Mohamed Aziz Mohamed Nasir v. State of Maharashtra, AIR 1976 SC 730

PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble Court be
pleased to:

1) Consider this review petition.

2) Setting aside of the sentence of imprisonment under the IPC

and sought release on probation either under the Probation of
Offenders Act 1958 or under the Juvenile Justice Act 2000
And pass any such order, other order that it deems fit in the interest of Justice, Equity and Good
Conscience. And for this, the Petitioner as in duty bound, shall humbly pray

MEMORIAL FOR THE PETITIONER Page no:

Place: S/d_________________
Date: (Counsel on behalf of the Petitioner)

MEMORIAL FOR THE PETITIONER Page no: