MEMORANDUM ON BEHALF OF PETITIONER

IN THE HONBLE SUPREME COURT OF INDIA

Sheo Nandan Paswan

(PETITIONER)

v.

State of Bihar and Ors.

(DEFENDENT)

CASE CONCERNING

Abetment, Criminal conspiracy and Withdrawal of the prosecution.

MEMORANDUM ON BEHALF OF THE PETITIONER

COUNSEL ON BEHALF OF THE PETITIONER

Arpit Chaudhary
Semester V
Section B
Roll No. 30
Date of Submission: 26/09/2016
 MEMORANDUM ON BEHALF OF PETITIONER

CONTENTS

LIST OF ABBREVIATIONS

INDEX OF AUTHORITIES

TABLE OF CASES

STATEMENT OF JURISDICTION

STATEMENTS OF FACTS

ISSUE RAISED

SUMMARY OF ARGUMENTS

WRITTEN SUBMISSIONS

PRAYER FOR RELIEF

 MEMORANDUM ON BEHALF OF PETITIONER

LIST OF ABBREVIATIONS

& And
ADJ Allahabad Daily Judgment
AIR All India Reported
Art. Article
Ed. Edition
Honble Honourable
Ors. Others
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Report
Supp. Supplement
Supra Pages above
v. Versus
Vol. Volume
 MEMORANDUM ON BEHALF OF PETITIONER

INDEX OF AUTHORITIES

BOOKS

Ratanlal and Dhirajlal, Indian penal Code, Lexis Nexis (34th edition 2004)

K.D Gaur, Indian Penal Code, Universal Law Publishing, 5th edition

Dr. Hari Singh Gaurs, Indian Penal Code, 14th edition, Vol. 2, Law publishers India

Private limited.

STATUTES

Indian Penal code, 1860

INTERNET MATERIALS

www.manupatrafast.in

www.indiankanoon.org
 MEMORANDUM ON BEHALF OF PETITIONER

STATEMENT OF JURISDICTION

It is humbly submitted that this court has the jurisdiction to adjudicate the instant matter as per
Article 137 of the Constitution of India.
 MEMORANDUM ON BEHALF OF PETITIONER

TABLE OF CASES

Malkahy Vs. Regina ((1868) LR 3 HL 306)

A.R Antulay Vs. R.S Nayak (MANU/SC/0082/1984)

Krishna Ballabhai Sahay Vs. Commissioner of Enquiry (MANU/SC/0378/1968)

Ram Narain Pomply Vs. CBI (AIR 2003 SC 2748)

Pramatha Nath vs Saroj Ranjan, (AIR 1962 SC 876)

Gaurav Venketta reddy vs State of A.P. ((2003) 12 SCC 469)

.
 MEMORANDUM ON BEHALF OF PETITIONER

STATEMENT OF FACTS

1. This case relates to the affairs of a Cooperative Bank called the 'Patna Urban Cooperative
Bank' (hereinafter referred to as the 'Co-operative Bank'). The Co-operative bank was
registered in May 1970 and it commenced its banking business with Nawal Kishore
Sinha as its Chairman and others at various positions.
2. There was a subcommittee formed in the bank, called "Loan Sub Committee", whose
objective was sanctioning and granting of loans to help people financially and to carry on
their vocation or business. The committee consisted of Nawal Kishore Sinha and others.
3. The Chairman, i.e., Nawal Kishore Sinha, was according to the bye-laws the ultimate
deciding authority in regard to all the functions of the Co-operative Bank.
4. Dr. Jagannath Mishra who was then a Member of the Legislative Council was closely
associated with Nawal Kishore Sinha and he helped the Co-operative Bank and Nawal
Kishore Sinha in diverse ways in connection with the affairs of the Co-operative Bank
and also assisted in mobilisation of resources for the Co-operative Bank.
5. There came to light a large number of irregularities such as non-maintenance of cash
books in a proper manner and grant of overdraft facilities without current account as also
illegal practices and acts of defalcation and malversation of funds of the Co-operative
Bank.
6. Registrar Co-operative Societies, at the instance of the Reserve Bank, made an order on
10th July 1974 superseding the management of the Co-operative Bank, removing Nawal
Kishore Sinha and other Directors on the Board from their office.
7. The Law Department recorded its opinion in the relevant file on 18th November 1974
that a prima facie case of conspiracy and criminal breach of trust was made out against
the loans and the office bearers of the Cooperative Bank
8. The file received the approval of the then Chief Minister, Shri Abdul Ghafoor on 2nd
January 1975. Thus, by 21st January 1975 a firm decision was taken to launch a criminal
prosecution against the loans and the members of the Board of Directors of the Co-
operative Bank including the Chairman Nawal Kishore Sinha
 MEMORANDUM ON BEHALF OF PETITIONER

9. The file was sent to Dr. Jagannath Mishra before instituting the criminal case, where, the
file was in the hands of Dr. Jagannath Mishra on 24th February 1975.
10. The file remained with Dr. Jagannath Mishra for over two and a half months and no
endorsement was made by him on that file until the middle of May 1975 with the result
that prosecution could not be filed against Nawal Kishore Sinha and the other Directors.
11. Meanwhile on 11th April 1975, Shri Abdul Ghafoor was thrown out and in his place Dr.
Jagannath Mishra became Chief Minister.
12. Dr. Jagannath Mishra passed two orders where first order passed on 16th May 1975,
stated no action upon Nawal Kishore Sinha and second order stating normal conditions
to be restored in the bank. However, the subsequent Order was ante-dated to 14th May
1975 fraudulently to override the effect of the earlier Order dated 16th May 1975 and
protect Nawal Kishore Sinha from civil liability arising from initiation of surcharge
proceedings
13. Thus, no approval was given by Dr. Jagannath Mishra to the filing of the prosecution
against the Chairman and members of the Board of Directors.
14. The application for withdrawal from the earlier order by Mr. Jagannath was opposed by
Sheonandan Paswan, a member of the Bihar Legislative Assembly.
15. Mr. Jagannath alleged that it was a political vendetta and Sheonandan Paswan being a
member of the opposition party is trying to corrupt his image and also he has no locus
standi to the case.
16. Neverthless, the case is filed by Sheonandan Paswan as a review judgement by the
Supreme Court.
 MEMORANDUM ON BEHALF OF PETITIONER

ISSUE RAISED

Whether Dr. Jagannath Mishra liable for committing Criminal Conspiracy and abusing his
power as the Chief Minister of Bihar?
 MEMORANDUM ON BEHALF OF PETITIONER

SUMMARY OF ARGUMENTS

Dr. Jagannath Mishra by passing unjustifiable orders in the authority of being a Chief
Minister, where, the orders were made in order to save the culprit Nawal Kishore Sinha.
Moreover, two order were passed, where, the subsequent Order was ante-dated in order
to remove the allegation over Nawal Kishore Sinha clearly shows the object of Dr.
Jagannath Mishra to pre-empt the filing of any criminal prosecution against Nawal
Kishore Sinha and the other members of the Board. Thus Dr. Jagannath along with Nawal
Kishore Sinha is liable for Criminal conspiracy as stated in section 120-A of the Indian
Penal Code.
 MEMORANDUM ON BEHALF OF PETITIONER

WRITTEN SUBMISSIONS

It is an undisputable fact that there was mobilization of fund in the Patna Urban Co-operative
bank by the sub-committee i.e Loan Sub-committee, whereby, One Nawal Kishore Sinha being
the head of the committee and according to the bye-laws had the ultimate deciding authority in
regard to all the functions of the Co-operative Bank. As stated in point No. 4 of the Statement of
facts, Dr. Jagannath Mishra was closely related with the affairs of the bank helping Nawal
Kishore Sinha in day-to-day affairs of the bank and regulating funds of the bank. It is a
substantial fact in the case that as soon as the orders were passed by Asstt. Public Prosecutor,
Patna. (For being filed in the Court of the Chief Judicial Magistrate, Patna) against Nawal
Kishore Sinha and others for Conspiracy and breach of trust, Dr Jagannath as the member of the
legislative council or afterwards being in the position of a Chief minister had always intervened
and attempted to clear Nawal Kishore Sinha of the allegations.

In 1868, common law with respect to conspiracy was widened in the case-

Malcahy v. Regina 1

The House of lord stated that the intention lies in the mind of the person, therefore such person
cannot be punished. But where two or more person agree to commit certain offences, Mens rea in
the mind of such persons become explicit as they enter into agreements to commit offences
which itself is considered as an act.

i. Thus, by the common agreement on the part of Dr, Jagannath, Nawal Kishore and other
people working in the Patna Urban Co-operative bank mobilising, defalcating and

1
(1868) LR 3 HL 306
 MEMORANDUM ON BEHALF OF PETITIONER

malversating the funds, show us that there was mens rea on their part to commit
offences.
ii. The notion of mens rea is further proved on the basis of the fact that the Second order
passed by Dr. Jagannath on 16th May 1975 in the position of Chief Minister stating
Please issue order for restoring the normal condition in the Bank after holding Annual
General Meeting was antedated to 14th May 1975(criminally liable under section 466
and section 471 of the Indian penal code). The effect of this action on the part of Dr.
Jagannath Misra was that even the direction to adopt surcharge proceedings against the
Chairman Nawal Kishore Sinha and Board of Directors in default of realisation of the
loans from the loanes was wiped out and the only direction which remained was that
normal condition in the Co-operative Bank should be restored by calling the Annual
General Meeting and holding the election. Thus obliterating all the criminal
proceedings against Nawal Kishore Sinha and other members who were responsible for
mobilization of funds.
iii. The Speaker of the Bihar legislative Assembly submitted its report against the working
of the loan sub-committee in Patna Co-operative bank in June, 1976 recommending
prosecution of Nawal Kishore Sinha and others and this led to a debate in the Bihar
Legislative Assembly in July 1976,thus the Government was forced to agree to launch
prosecution against the culprits. Dr. Jagannath Mishra accordingly passed an order on
4th August 1976 directing launching of prosecution against those involved in the sordid
affairs of the Co-operative Bank but even there, he directed that the prosecution be
launched against some of the office bearers and loans including K. P. Gupta, M. A.
Hyderi and A. K. Singh but not against Nawal Kishore Sinha. This order made by Dr.
Jagannath Misra affords the clearest indication that, even with the entire furore which
had arisen on account of non-prosecution of Nawal Kishore Sinha and others, Dr.
Jagannath Misra persisted in his attempt to shield Nawal Kishore Sinha from
prosecution.
iv. In 1980 Dr. Jagannath Mishra was re-elected the chief minister of Bihar. After coming
back to power he constituted a Cabinet Sub-Committee on 15th September, 1980 to
consider the expediency of the withdrawal of the prosecution and on 20th February,
 MEMORANDUM ON BEHALF OF PETITIONER

1981 the Cabinet sub-Committee recommended that the cases against Dr. Jagannath
Misra and others should be withdrawn

Thus, a clear evil intention can be inferred by the acts of Dr. Jagannath Mishra and thereby he is
liable for criminal conspiracy along with Nawal Kishore Sinha as defined in Section 120-A,
along with the charges prescribed under Section 466 (Forgery of record of court or public
register) and section471 (Using a genuine a forged document or electronic record) of the Indian
penal Code respectively. Therefore there is a joint evil intent to constitute the crime.

It is very clear that First, there was an agreement between the parties and Secondly, the
agreement was to earn profit through mobilization of funds of the Patna Co-operative bank, thus
it being an Illegal act

A. R. Antulay v. R.S. Nayak2

It is now settled law that a criminal proceeding is not a proceeding for vindication of a private
grievance but it is a proceeding initiated for the purpose of punishment to the offender in the
interest of the society. It is for maintaining stability and orderliness in the society that certain acts
are constituted offences and the right is given to any citizen to set the machinery of the criminal
law in motion for the purpose of bringing the offender to book.

In this case court pointed out that "punishment of the offender in the interests of the society
being one of the objects behind penal statute enacted for larger good of society, the right to
initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait
jacket formula of locus standi"

2
MANU/SC/0082/1984
 MEMORANDUM ON BEHALF OF PETITIONER

Sheo Nandan Paswan equally be entitled to oppose the withdrawal of such prosecution if it is
already instituted.3 Thus by the virtue of law the petitioner is fully entitled to stand against the
withdrawal of order which stated to ensure normal condition in the bank.

Krishna Ballabha Sahay v. Commission of Enquiry4

It is undoubtedly true that the prosecution against Dr. Jagannath Misra was initiated by the
successor Government of Karpoori Thakur after Dr. Jagannath Misra went out of power. But that
by itself cannot support the inference that the initiation of the prosecution was actuated by
political vendetta or mala fides because it is quite possible that there might be material justifying
the initiation of prosecution against Dr. Jagannath Misra and the successor Government might
have legitimately felt that there was a case for initiation of prosecution and that is why the
prosecution might have been initiated. There would be nothing wrong on the part of the
successor Government in doing so and the prosecution cannot be said to be vitiated on that
account. This is precisely what Hidayatullah, J stated in this case.

The abetment under section 107 requires the Commission of some act or illegal
omission pursuant to the conspiracy5 and a mere agreement is not enough6

Dr. Jagannath has clearly instigated7 Nawal Kishore Sinha by encouraging him to commit illegal
act. He had intentionally aided Nawal Kishore in order to make profits through illegal means.

3
Dr. Hari Singh Gaurs, Indian Penal Code, 14 th edition, Vol. 2, 1900.

4
MANU/SC/0378/1968

5
Ratanlal and Dhirajlal, the Indian Penal Code,34th edition, Page 247

6
Pramatha Nath vs Saroj Ranjan, AIR 1962 SC 876
 MEMORANDUM ON BEHALF OF PETITIONER

The word instigate literally means to provoke, incite urge, encourage or to bring about by
persuasion to do anything.8 The abetment may be by inaligation, conspiracy and intentional aid
as provided in the three clauses of the section 107.9 Thus proves the offence of abetment and the
conspiracy committed by Mr. Jagannath Mishra as he instigated Nawal Kishore Sinha, engaged
in illegal act with him and intentionally aided him for the purpose of illegal act.

Ram Narain Poply vs CBI10

The supreme court held that to convict the parties for the conspiracy under section 120B mere
proof of agreement between two or more to do an unlawful act or an act by unlawful means is
enough. When two agree to carry it into effect, the very plot is an act by itself and an act of each
of the parties, promise against promise, Actus contractum, capable of being enforced.

Thus it is an undisputable fact that the attempt by Dr. Jagannath Mishra to cover the fraud
committed by Nawal Kishore Sinha, passing orders to obliterate the allegation over Nawal
Kishore and aiding and assisting the Patna Urban Co-operation bank clearly shows agreement on
the part of the parties for which there shall be justice ensured by the law.

7
Amiruddin, (1922) 24 Bom, LR 534, 542.

8
Supra 4

9
Gaurav Venketta reddy vs State of A.P., (2003) 12 SCC 469

10
AIR 2003 SC 2748
 MEMORANDUM ON BEHALF OF PETITIONER

PRAYER FOR RELIEF

Therefore, in the light of the facts stated, arguments advanced and authorities cited, the Petitioner
humbly pray that the Supreme Court of India be pleased to adjudge and declare that:

The defendant be liable under Section 120A and shall be punished under section 120B for
committing the offence of criminal conspiracy along with the offence of abetment as stated in
107 read along with section 120A.

Or, pass any order, decree as the Court may deem fit in the lights of Justice, Equity & Good
Conscience.

All of which is humbly prayed.

Place: New Delhi COUNSEL ON BEHALF OF THE PETITIONER

Date: 26/09/2016