Heena Ibraham, a citizen of Bangladesh came to India on official duty in the month of December

2016 before returning to Bangladesh, she wanted to visit Ajmer sharif. With that intent in mind, she
arrived at Calcutta on 24th December, 2016 and stayed at a hotel at 10, Sudder Street, Police Station
Taltola. She arrived at Howrah Railway Station on 01 January, 2017 at about 14.00 hours to avail
Jodhpur Express at 23.00 Hours for paying a visit to Ajmer Sharif She had, however, a wait listed
ticket and so she approached a Train Ticket Examiner at the Station for confirmation of berth against
her ticket. The Train Ticket Examiner asked her to wait in the Ladies Waiting room. She accordingly
came to the ladies waiting room and rested there at about 17.00 hours on 01st January, 2017 two
unknown persons (later identified as one Ashoke Singh, a tout who posed. himself as a very
influential person of the Railway and Siya Ram Singh a railway ticket broker having good
acquaintance with some of the Railway Staff of Howrah Station) approached her. took her ticket and
returned the same after confirming reservation in Coach No.S-3 (Berth No. 17) of Jodhpur Express.
At about 20.00 hours Siya Ram Singh came again to her with a boy named Kashi and told her to
accompany the boy to a restaurant if she wanted to have food for the night. Accordingly at about
21.00 hours she went to a nearby eating house with Kashi and had her meal there. Soon after she
had taken her meal, she vomited and came back to the Ladies waiting room. At about 21.00 hours
Ashoke Singh along with Rafi Ahmed a Parcel Supervisor at Howrah Station came to the Ladies Niwas
before boarding the train. She appeared to have some doubt initially but on being certified by the
lady attendants engaged on duty at the Ladies Waiting Room about their credentials she
accompanied them to Yatri Niwas. Sitaram Singh, a khalasi of electric Department of Howrah Station
joined them on way to Yatri Niwas. She was taken to room No.102 on the first floor of Yatri Niwas.
The room was booked in the name of Ashoke Singh against Railway Card pass No. 3638 since 30
December 2016. In room No.102 two other persons viz. one Lalan Singh, Parcel Clerk of Howrah
Railway Station and Awdesh Singh, Parcel Clearing Agent were waiting. Heena Ibraham suspected
something amiss when Ashoke Singh forced her into the room. Awdesh Singh bolted the room from
outside and stood on guard outside the room. The Sunil Sharma (Age 16 yrs, boy helper in railway on
contract basis) took liquor inside the room and also forcibly compelled her to consume liquor. All the
five persons who were present inside the room brutally violated, Heena Ibraham, it is said, was in a
state of shock and daze. When she could recover she managed to escape from the room of Yatri
Niwas and came back to the platform where again she met Siya Ram Singh and found him talking to
Ashoke Singh. Seeing her plight Siya Ram Singh pretended to be her saviour and also abused and
slapped Ashoke Singh. Since it was I past. midnight and Jodhpur Express had already departed, Siya
Ram requested Heena Khatoon to accompany him to his residence to rest for night with his wife and
children. Het ured her help entrain Poorva Express on the following morning. Thereafter Siyaram
accompanied by Ram Samiram Sharma, a friend of Siyaram took her to the rented flat of Ram
Samiram Sharma at 66, Pathuriaghata Street, Police Station Jorabagan, Calcutta. There Siyaram
raped Heena and when she protested and resisted violently Siyaram and Ram Samiran Sharma
gagged her mouth and nostrils intending to kill her as a result Heena bled profusely. On being
informed by the landlord of the building following the hue and cry raised by Heena Ibraham, she was
rescued by Jorabagan Police."

DECISION TAKEN BY HON'BLE HIGH COURT

It was on the basis of the above facts that the High Court had awarded a sum of Rs.10 lacs as
compensation for Smt. Heena Ibraham as the High Court was of the opinion that the rape was
committed at the building (Rail Yatri Niwas) belonging to the Railways and was perpetrated by the
Railway employees.
APPEAL TO THE HON'BLE SUPREME COURT

Being aggrieved by the said judgment of the High Court that had awarded a sum of Rs.10 lacs as
compensation for Smt. Heena Ibraham, The Chairman, Railway Board filed an appeal before the
Hon'ble Supreme Court on the ground that Railways would not be liable to pay compensation to
Smt. Heena Ibraham who was a foreigner and was not an Indian national. It is also contended that
commission of the offence by the person concerned would not make the Railway or the Union of
India liable to pay compensation to the victim of the offence. It is contended that since it was the
individual act of those persons, they alone would be prosecuted and on being found guilty would be
punished and may also be liable to pay fine or compensation, but having regard to the facts of this
case, the Railways, or, for that matter, the Union of India would not even be vicariously liable. It is
also contended that for claiming damages for the offence perpetrated on Smt. Heena Ibraham, the
remedy lay in the domain of Private Law and not under Public Law and, therefore, no compensation
could have been legally awarded by the High Court in a proceeding under Article 226 of the
Constitution and, that too, at the instance of a practicing advocate who, in no way, was concerned or
connected with the victim.

STATEMENT OF ISSUES

1. Whether Heena Ibraham who is a foreigner and not an Indian citizen is entitled to any relief
compensation under constitution of India?

2. Whether the commission of an offence like rape by the person concerned, would make the

railway or the Union of India liable to pay compensation to the victim of the offence on the ground
of vicarious liability?

3. Whether the accused Sunil Sharma (Age-16 yr. Boy) can be treated as an adult for the offence
Gang Rape?

SUMMARY OF ARGUMENT

1. Whether Heena Ibraham who is a foreigner and not an Indian citizen is entitled to any relief/
compensation under constitution of India?

It is humbly submitted before this Hon'ble Court that the Heena Ibraham, who was not the
citizen of this country but came here as a citizen of Bangladesh was, nevertheless, entitled to all the
constitutional rights available to a citizen so far as "Right to Life" was concerned. She was entitled to
be treated with dignity and was also entitled to the protection of her person as guaranteed under
Article 21 of the Constitution. As a national of another country, she could not be subjected to a
treatment which was below dignity nor could she be subjected to physical violence at the hands of
Govt. employees who outraged her modesty. The Right available to her under Article 21 was thus
violated. Consequently, the State was under the Constitutional liability to pay compensation to her.

2. Whether the commission of an offence like rape by the person concerned, would make the
railway or the Union of India liable to pay compensation to the victim of the offence on the ground
of vicarious liability?

It is humbly submitted before this Hon'ble Court that Running of Railways is a commercial activity.
Establishing Yatri Niwas at various Railway Stations to provide lodging and boarding facilities to
passengers on payment of charges is a part of the commercial activity of the Union of India and this
activity cannot be equated with the exercise of Sovereign power. The employees of the Union of
India who are deputed to run the Railways and to manage the establishment, including the Railway
Stations and Yatri Niwas, are essential components of the Govt. machinery which carries on the
commercial activity. If any of such employees commits an act of tort, the Union Govt., of which they
are the employees, can, be held vicariously liable in damages to the person wronged by those
employees.

3. Whether the accused Sunil Sharma (Age-16 yr. Boy) can be treated as an adult for the offence of
Gang Rape?

It is humbly submitted before this Hon'ble Court that juvenile in conflict with law named as Sunil
Sharma (Age- 16 yr.) can be treated as an adult for the offence of gang rape for as per the provisions
of the Code of Criminal Procedure, 1973 according to the JUVENILE JUSTICE (CARE AND PROTECTION
OF CHILDREN) BILL, 2015 and we request an order transfer of the trial of the case to the Children's
Court having jurisdiction to try such offences from juvenile justice board.

ARGUMENTS ADVANCED

1. Whether Heena Ibraham who is a foreigner and not an Indian citizen is entitled to any relief
compensation under constitution of India?

It is most humbly submitted before this Hon'ble Court that the Mrs. Heena Ibrahim though is not a
citizen of india but of Bangladesh she is entitled to the relief/ Compensation under constitution of
India Under article 14 and 21 which are extended to "persons" and not just "citizens of India". The
contention laid by appellant in his appeal lacks mainly on the context that it does not realise that the
words person and citizen both are used in Fundamental Rights as part of Constitution of India and
hence, with this few Fundamental rights are also available to the non citizens which assures them a
safe environment when visiting India.

Article 14 of constitution Article 14, guarantees equality before law or the equal protection of laws
within the territory of India, is applicable to "person" which would also include the "citizen" of the
country and "non- citizen" both. In the case of Indra Sawhney etc vs union of India and others air
1993 SC 477, 1992 supp 2 SCR 454 Hon'able court has remarked that "the right to equality is also
recognized as one of basic features of Indian constitution. Article 14 applies to all person and is not
limited to citizens. A corporation, which is a juristic person, is also entailed to the benefit of this
article. This concept implied equality for equals and aims at striking down hostile discrimination or
oppression of inequality.

Thus, This judgement clarifies all the doubts that person mentioned in the Article 14 is not limited to
the term citizens but includes others as well even a commercial entity such as corporation and its
main aim is in striking down hostile discrimination or oppression of inequality as suggest by the
appeal of my learned friend on the other side of the argument. Hence, we can draw a conclusion
that Mrs. Heena Ibraham is as much qualified to the equal treatment from Law as the Railway board
and her status citizen of Bangladesh is not a bar to it.

II.

Article 21 of constitution:- Article 21 (Protection Of Life And Personal Liberty) says "No person shall
be deprived of his life or personal liberty except according to procedure established by law. "In The
Chairman, Railway Board & Ors vs Mrs. Chandrima Das & Ors. 2000 it has been held by the Hon'ble
Supreme Court that "The meaning of the word "life" cannot be narrowed down. According to the
tenor of the language used in Article 21. it will be available not only to every citizen of this country,
but also to a "person" who may not be a citizen of the country. "Thus this proves the validity of
statement that Mrs. Heena Ibrahim though is not a citizen of India but of Bangladesh she is entitled
to the relief/ Compensation under constitution of India. Also in Anwar vs. State of J & K, AIR 1971 SC
337-1971 (1) SCR 637 = (1971) 3 SCC 104, it was held that "the rights under Articles 20. 21 and 22 are
available not only to "citizens" but also to "persons" which would include "non citizens". In the
landmark judgement in the case of Bandhua Mukti Morcha vs. U.O.L., AIR 1984 SC 802 1984 (2) SCR
67=(1984) 3 SCC Hon'ble Supreme Court that It is thefundamental right of every one in this country,
to live with human dignity, free from exploitation. Further Hon able Supreme Court in Bodhisatwa
vs. Ms. Subdhra Chakroborty (1996) 1 SCC 490 has held "rape" as an offence which is violative of the
Fundamental Right of a person guaranteed under Article 21 of the Constitution. The Court observed
as under:

"Rape is a crime not only against the person of a woman, it is a crime against the entire society. It
destroys the entire psychology of a woman and pushes her into deep emotional crisis. Rape is
therefore the most hated crime. It is a crime against basic human rights and is violative of the victims
most cherished right, namely, right to life which includes right to live with human dignity contained
in Article 21.1

Hence, through above discussed judgements Hon'able Supreme Court has already set a precedence
where non citizens will also have fundamental right to life and rape will amount to its violation,
entitling Mrs. Heena Ibraham compensation under Constitution of India.

2. Whether the commission of an offence like rape by the person concerned, would make

the railway or the Union of India liable to pay compensation to the victim of the

offence on the ground of vicarious liability?

It is most humbly submitted before this Hon'ble Court that vicarious liability refers to a situation
where someone held responsible for the actions or omissions of another person. The liability of the
government in tort is governed by the principles of public law inherited from British Common law
and the provisions of the Constitution. The whole idea of Vicariously Liability of the State for the
torts committed by its servants is based on three principles:

Respondeat superior (let the principal be liable). Quifacit per alium facit per se (he who acts through
another does it himself).

Socialisation of Compensation..

Unlike Crown Proceedings Act, 1947(England), we do not have any statutory provisions mentioning
the liability of the State in India. Hence, the precedent for the vicarious liability of the state has been
set through various decisions of the hon'able courts. In State of Rajasthan vs. Mst. Vidhyawati AIR
1962 SC 933, was held that the Govt. will be vicariously liable for the tortious act of its employees.
This was a case where a claim for damages was

made by the heirs of a person who died in an accident caused by the negligence of the driver of a
Govt vehicle. Reference may also be made to the decisions of this Court in State of Gujarat vs.
Memon Mahomed Haji Hasan AIR 1967 SC 1885 and Smt. Basava Kom Dyamogouda Patil vs. State of
Mysore AIR 1977 SC 1749.

It may be pointed out that functions of the Govt. in a welfare State are manifold, all of which cannot
be said to be the activities relating to exercise of Sovereign powers. The functions of the State not
only relate to the defense of the country or the administration of justice, but they extend to many
other spheres as, for example, education, commercial, social, economic, political and even marital.
These activities cannot be said to be related to Sovereign power.

Running of Railways is a commercial activity. Establishing Yatri Niwas at various Railway Stations to
provide lodging and boarding facilities to passengers on payment of charges is a part of the
commercial activity of the Union of India and this activity cannot be equated with the exercise of
Sovereign power. The employees of the Union of India who are deputed to run the Railways and to
manage the establishment, including the Railway Stations and Yatri Niwas, are essential components
of the Govt. machinery which carries on the commercial activity. If any of such employees commits
an act of tort, the Union Govt., of which they are the employees, can, subject tom other legal
requirements being satisfied, be held vicariously liable in damages to the person wronged by those
employees. Thus, in the light of the above mentioned argument and decisions of the Hon'able
Supreme Court we may conclude that the commission of an offence like rape by the person
concerned does make the railway or the Union of India liable to pay compensation to the victim of
the offence on the ground of vicarious liability.

Whether the accused Sunil Sharma (Age-16 yr. Boy) can be treated as an adult for the offence of
Gang Rape?

It is most humbly submitted before this Hon'ble Court that THE JUVENILE JUSTICE (CARE AND
PROTECTION OF CHILDREN) BILL. 2015 under section 15 says, 15. (1) In case of a heinous offence
alleged to have been committed by a child, who has completed or is above the age of sixteen years,
the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to
commit such offence, ability to understand the consequences of the offence and the circumstances
in which he allegedly committed the offence, and may pass an order in accordance with the
provisions of subsection (3) of section 18:

Provided that for such an assessment, the Board may take the assistance of experienced

psychologists or psycho-social workers or other experts. Explanation. For the purposes of this
section, it is clarified that preliminary assessment is not a

trial, but is to assess the capacity of such child to commit and understand the consequences of the

alleged offence.

Further same Act in its section 18 (3) also says) Where the Board after preliminary assessment under
section 15 pass an order that there is a need for trial of the said child as an adult, then the Board
may order transfer of the trial of the case to the Children's Court having jurisdiction to try such
offences.

Prior to the commencing of the Act in the landmark case of State through Reference vs Ram Singh &
Ors. on 13 March, 2014, Delhi High Court had also referred the case of one convict who was 17 year
old at the time of commencement of the crime was as per law tried by juvenile justice board and not
the high court. However, this at that time there was no such provision of trial by children court
which came later through amended act of Juvenile Justice mentioned above. In light of the above
produced section it is submitted that a board of enquiry may be constituted under THE JUVENILE
JUSTICE (CARE AND PROTECTION OF CHILDREN) BILL, 2015 which may check the suitability of the
Juvenile in conflict with law hereby mentioned as Sunil Sharma to be tried as adult or not.

Prayer

PRAYER

Wherefore in the light of the facts stated, issues raised, authorities cited and arguments advanced, it
is most humbly prayed before this Hon'ble Court that it may be pleased to: 1. The appeal having no
merit may be dismissed with the observation that the amount of

compensation shall be made over to the High Commissioner for Bangladesh in India for payment to
the victim, Smt. Heena Ibraham. 2. The payment to the High Commissioner shall be made within
three months to lessen the

ordeal she is facing for past few months. 3. A board of inquiry may be constituted at earliest to try
the case of Sunil Sharma (Age- 16 yr.)under JUVENILE JUSTICE (CARE AND PROTECTION OF
CHILDREN) BILL. 2015 for his treatment as adult for the offence of gang rape for as per the provisions
of the Code of Criminal Procedure, and further it is requested an order transfer of the trial of the
case to the Children's Court having jurisdiction to try such offences from juvenile justice board may
be made as per the recommendation of the board of inquiry.

AND

Pass any other order that it may deem fit in the interest of Justice, Equity and Good Conscience.

Council for the Chanda Bose and Ors