The K.K.

Luthra Memorial Moot Court, 2021

TEAM CODE: MH121

THE K.K. LUTHRA MEMORIAL MOOT COURT, 2021

Before

The Supreme Court of Ozala

Appeal No. ___ of 2020

Ms. QUANTISA…....………………………………………APPELLANT
v.
THE STATE OF ASPAR..………….....................................RESPONDENT

W.P. No. ___ of 2020

MEMORANDUM on behalf of PETITIONER

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Memorandum on behalf of Petitioner
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PLEADINGS

ISSUE I. WHETHER THE ADDITIONAL CONDITIONS FOR GRANT OF BAIL

It is humbly submitted that the additional conditions for grant of bail under Section 439A Code
of Criminal Procedure of Ozala (hereinafter Cr.PC.) violate fundamental rights guaranteed by
Part III of the Constitution of Ozala owing to the following averments:

[A] The conditions are in violation of Article 14 of the Constitution of Ozala

[B] They are against the Principles of Article 21 of the Constitution of Ozala

[A] The conditions are in violation of Art. 14 of the Constitution of Ozala

Article 14 of Indian Constitution talks about right to equality i.e. the State shall not deny any
person equality before law and equal protection of laws within the territory of India. It is a
positive right of an individual to be treated as an equal. The State is under an obligation to
maintain the right. The two main conditions to be fulfilled by any statute to be declared
constitutional or unconstitutional under the article is to pass the test of ‘intelligible differentia’
and ‘rational nexus’.

(i) “reasonable ground to believe a person not guilty of offence” vis-à-vis ‘intelligible
differentia’ & ‘rational nexus’

1. Ei incumbit probatio qui dicit, non qui negat with respect to criminal jurisprudence, this
maxim holds a great significance as it ordinarily, presumes a person to be innocent unless
proved to be guilty. This is also not any concession given to him by any system or the
State. This is his birth right and is a key factor in the process of bail. The provision of
reasonable ground seems to be antithetical to this presumption. As stated by the

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Constitution Bench of the Court in Indian Express Newspapers vs. Union of India1,
held that- “any procedure which directly takes away this presumption has to be treated as
unreasonable and unfair.” In the present scenario, the appellant Ms. Quantisa is presumed
to be guilty unless proven innocent which could clearly be traced in the facts wherein she
filed for a bail application but the High Court rejected the plea on grounds of Sec. 439A
Cr.PC. The Object of the bail is to secure the attendance of the accused 2, which Ms.
Quantisa is intended to give as she surrenders her passport and decides to reside at the
temple of Aspar.3
2. With respect to the rule of construction the expression ‘reason to believe’ should be
construed with the aim, object and scheme of Sec. 439A Cr.PC. the inflammatory
allegations having their pedestal on falsity, malafide, and motive afford considerable
grounds to be enlarged on bail as the object of it is to protect an individual from
humiliation and harassment4, which while declining bail to Ms. Quantisa are clearly trying
to humiliate her as she is quite a public figure, considered to be the reincarnation of the
founder of the sect.5
3. The provision of Sec. 439A Cr.PC. is the end result of the legislature which is formed
without the adequate determining principle as it is a direct opposite of Ei incumbit
probatio qui principle. This provision is also manifestly arbitrary as it is capricious,
inserted suddenly on an account of outbreak of epidemic. This provision was introduced
on 13th March ,20206 and from 10 March 2020 the Government of Aspar started the
thermal scanning7. The Time-line itself indicates the capricious nature of the provision. In
the words of J. Nariman-
4. “Manifest arbitrariness, therefore, must be something done capriciously, irrationally
and/or without determining principle. Also, when something is done which is excessive
and disproportionate, such legislation would be manifestly arbitrary.”8

1
Indian Express Newspapers vs. Union of India, (1985) 1 SCC 641.
2
Nagendra v. King Emperor, AIR (1924) CAL 476.
3
Moot Proposition, para 14.
4
Ankush Kumar v. State of Punjab, (2018) SCC OnLine P&H 1259.
5
Moot Proposition, para 5.
6
Ibid.
7
Moot Proposition, para 4.
8
Shayara Bano v. Union of India, (2017) 9 SCC 1.

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5. The example of arbitrariness of twin conditions mentioned could be summarise as- Mr. X
and Mr. Y charged under same offence and if pre-arrest bail is granted to Mr. X, which
ensures throughout the trial, such person will be out on bail without his having satisfied
the twin conditions of Sec. 439A Cr.PC. However, if in an identical situation, Mr. Y is
prosecuted for the same offences, but happens to be arrested, and then applies for bail, the
twin conditions of Sec. 439A Cr.PC. will have first to be met. This again leads to an
extremely anomalous situation showing that Sec. 439A Cr.PC. leads to manifestly
arbitrary and unjust results and would, therefore, violative of Article 14.
6. It has been established as basic principle of jurisprudence that during the pendency of a
trial of an accused, the bail is a rule and jail is only an exception 9. The offence, by
definition, is an act or the consequences of an act of a person, as reflected in a fact or set
of facts which is made punishable by law. Unless the set of facts, which are made
punishable by law are established in accordance with law a person cannot be convicted. It
requires the Court to be ‘satisfied’ that there are ‘reasonable grounds for believing’ that
the person seeking bail is ‘not guilty’ of such an offence. The mandatory requirement of
the satisfaction of the Court, at the stage of grant of bail, qua the petitioner not being
guilty of such an offence militates against the presumption of the innocence of the accused
till he is proved guilty.10 The issue of bail is one of liberty, justice, public safety and
burden of the public treasury, all of which insist that a developed jurisprudence of bail is
integral to a socially sensitized judicial process.11
7. If either of these two conditions is not satisfied, the bar operates and the accused cannot be
released on bail.12 The expression ‘reasonable ground’ connotes substantial probable cause
for believing that the accused is not guilty of the offence charged and this reasonable
belief contemplated in turn points to existence of such facts and circumstances as are
sufficient in themselves to justify recording of satisfaction that the accused is not guilty of
the offence charged.

9
State of Rajasthan v. Balchand alias Baliya, (1977) AIR 2447, 1978 SCR (1) 535, Moti Ram v. State of M.P.,
(1978) 4 SCC 47; Babua v. Tazmal Hussain , SLP(Cr.) 2866 of (2000).
10
Union of India vs. Sanjeev v. Deshpande, (2014) (4) RCR (Cr.) 75.
11
Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240 : 1978 SCC (Cri) 115.
12
Sec. 439A of Cr.PC.

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(ii) The terminology of the twin conditions ---- in conflict with nexus to the object to be
achieved.

8. “An interpretation of the provision of any Act must first depend upon the rule of litera
legis, i.e. the actual language and the plain meaning thereof”13

The language also creates an inconsistency in itself, because if a court granting bail
records a satisfaction that there are reasonable grounds for believing that the petitioner is
‘not guilty’ of such an offence then this may, at least to some extent, foreclose the option
of the trial court for holding that the petitioner ‘is guilty’ of such an offence , as observed
by the Hon'ble SC.14 No court can record a satisfaction and belief that a person is
‘guilty’ or ‘not guilty’ of the offence at the stage of grant of bail. As what is required
to be done after a full-fledged trial cannot be sought to be considered and recorded at
the initial stage of trial. If a language of a Statute does not satisfy the test of
constitutional validity then that language cannot be retained on the statute book at all,
except at the cost of creating avenues for its discriminatory use.15 In such situations the
possibility of discriminatory application of the same provision qua two different persons
would not be ruled out, which would be violative of Art. 14 of the Constitution of India.

9. The another aspect of the language used in the provision of Sec. 439A of Cr.PC., which
makes it arbitrary and discriminatory is “the application of the conditions mentioned in
this provision to be applicable only if the public prosecutor so desires”. As per the
verbatim of this section that where the public prosecutor does not oppose the bail
application, the court is not required to apply its mind for arriving at a satisfaction and
belief as prescribed in Sec.439A (ii) Cr.PC.
10. As per the second part of the provision is concerned which requires the court to be
satisfied that there are reasonable grounds for declaring that the accused is not likely to
commit ‘any offence’ while on bail. This part of Sec. 439A(ii) Cr.PC. militates against the
rationale and reasoning considered by the Hon’ble SC in Nikesh Tarachand Shah’s16

13
Paza Neduraman Subha v. State, Cr. App. No.1606 of 2002 (2003).
14
Supra note 4.
15
Ibid.
16
Nikesh Tarachand Shah v. Union of India, W.P.(Cr) No.67 of 2017 in SC on 23rd November 2017.

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case. In this case the apex court has implied that that if such language extends in operation
not only to the offence under the special Act but also to any offence under any other legal
provision where such conditions are not required to be applied for grant of bail then such
language enters the realm of unconstitutionality. Therefore, this language is also arbitrary
on that count because it requires the Court to satisfy itself that the petitioner is not likely
to commit any offence on the earth while on bail. Since the language of the second part
has been thrown open the entire criminal arena to be considered by the Court before grant
of bail under Cr.PC., therefore, this language does not have even the nexus to the object to
be achieved by the Act of Criminal procedure. Also, a Court of law would always be well
advised to keep in mind that ‘prophesy is not thy domain’. No Court, howsoever trained,
can be ‘reasonably’ satisfied that a person would not commit any offence, may be even
under Cr.PC. after coming out of the custody. The crime being based on mens rea is a
function of mental state of an individual, which cannot be guessed by any Court in
advance, by any means.
11. Neither the Court would be able to record a satisfaction that the accused would, likely,
commit the offence after coming out of the custody, nor would the Court be able to record
a satisfaction that the accused would not commit any offence after coming out of the
custody. Hence, the latter part of Sec.439A(ii) Cr.PC. requires a humanly impossible act
on the part of the Court. Since the second part of Section 439A (ii) requires a satisfaction
of the Court, which is impossible by extension of any human logic, therefore, this is an
irrational requirement. There is no rational way for a Court to record its satisfaction or to
arrive at this satisfaction qua possible future conduct and mental state of an accused.
12. In case of Nikesh Tarachand Shah17 the SC has categorically held that, it is not the ‘object’
of the Act or the ‘form’ and so the language or modality thereof which is material, rather
it is its ‘direct effect’ of such state instrument, on the right of an individual which is
material for the jurisdiction of the Court to grant relief of protection of right of an
individual, and has held the provision similar to the one as contained in Section 439A as
ultra vires.

17
Supra note 16.

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[B] They are against the Principles of Art. 21 of the Constitution of Ozala

Article 21 of Constitution of Ozala forms an essential element of not only the basic structure of
the Constitution but also an indispensable Fundamental Right ,the violation of which renders any
law or the particular provision unconstitutional18. Its contravention is made out when a person is:

(i) Deprived of Personal Liberty

13. Ms. Quantisa has been deprived of her personal liberty as she has been unreasonably
arrested by the Police when she had a severe medical condition19 and denied of her right of
bail by the HC20 on the grounds of the 2 additional conditions of bail not being satisfied ,
even when there is a substantial delay ( lapse of more than 60 days after the arrest ,
charges still not filed) in the proceedings of the trial court 21 . The twin conditions as per
Sec. 439A of Cr.PC.22 which are taken as a ground for rejection of the bail plea are not a
hard and fast rule23 for the grant of bail , rather it is the discretion of the court 24 to take up
the matter on the basis of the prima facie case ,the seriousness of the charges and the
anticipation of absconding of the accused based on his behaviour 25. The court in such
cases is of the opinion that “any person being punished in respect of any matter, upon
which, he has not been convicted is contrary to the concept of personal liberty enshrined
in the Constitution”26.
14. It is humbly submitted that the Petitioner herein has not committed any crime as she was
not aware of the fact that she was infected by the virus and had a justifiable reason to
believe that by virtue of her practice of cosmic yoga she was not prone to the said
infection. Also, she has no intention of absconding as she has expressly agreed to
18
Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694.
19
Moot Proposition, para 12.
20
Moot Proposition, para 14.
21
Moot Proposition, para 13.
22
Moot Proposition, para 14
“a) the court should have reasonable grounds to believing that the person is not guilty of an offence and b) the
person is not likely to commit any offence while on bail”.
23
K.N. Joglekar v. Emperor ,AIR (1931) All 504 : 33 Cri LJ 94
24
Km. Hema Mishra v. State of U.P. and Others (2014) 1 MLJ (CRL) 450; Supra note 1.
25
Sanjay Chandra v. C.B.I., (2012) 1 SCC 40 ; State of U.P., through CB v. Amarmani Tripathi - LNIND 2005 SC
725 (2005) 8 SCC 21 2005.
26
Ibid; Supra note 11; In Emperor v. Hutchinson ,AIR (1931) All 356, 358 : 32 Cri LJ 1271.

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handover her passport to the police officials and has agreed to stay at the The Great
Temple of Aspar for the time being. Thus there is no imperative ground for the court to
keep an innocent person in the jail and deny her the Right to her Personal Liberty. Such
Act, if done will be in contravention with the Constitutional principles and Human Rights
as specified in Universal Declaration of Human Rights,1948 (UDHR) to which Ozala is a
signatory. Along with that it shall go against the established criminal law principle that
states “Bail is a rule and Jail is an Exception”27

(ii) Deprivation should be under an unreasonable and unfair procedure established by law
Or should not be under any Procedure established by law.

15. It is submitted that the additional twin conditions under Sec. 439A Cr.PC. for grant of bail
shall not be included under the purview of fair and reasonable procedure established by
law28 as it does not satisfy the test of Procedural fairness. The court in many cases has
used the test to declare that ‘procedure established by law’ mentioned therein is an
exception to Art.21 and should not be unreasonable, unfair and unjust 29.Under this
doctrine, the Court will not just examine whether the procedure itself is reasonable, fair
and just, but also whether it has been operated in a fair, just and reasonable manner.

16. The conditions mentioned herein are devoid of reason and just application as they reverse
the Burden of Proof from the prosecution to the defence as a result of which a presumably
innocent person is being kept in indefinite custody and thus, presumed to be guilty than
innocent. Any procedure which directly takes away this presumption has to be treated as
unreasonable and unfair30 . The first condition seems contrary to the principle of
presumption of innocence in favour of the accused until proved otherwise. And the latter
part seems humanly impossible as the Court is required to record a satisfaction that the
accused would, likely, commit the offence after coming out of custody, or not commit any
offence after being released on bail. Thus , it can be successfully contended that for the

27
Supra note 9.
28
Olga Tellis v. Bombay Municipal Corp., AIR (1986) SC 180.
29
Maneka Gandhi v. Union of India, (1978) AIR 597, 1978 SCR (2) 621 ; Sunil Batra v Delhi Administration and
Ors., (1978) AIR 1675.
30
Supra note 4.

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above mentioned reasons the twin conditions are in gross violation of Art. 21 and does not
satisfy of the Test of Procedural fairness.

17. The conditions are against the very Object and Preamble of the Cr.PC. and Article 11 of
UDHR both of which intend to presume the accused innocent till proved otherwise . The
guarantee of ‘presumption of innocence’ bears a direct link to the ‘right against self-
incrimination’ since compelling the accused person to testify would place the burden of
proving innocence on the accused instead of requiring the prosecution to prove guilt31.

18. The SC in dealing with such cases has held that invocations of a compelling public
interest cannot justify the dilution of constitutional rights such as the ‘right against self-
incrimination’32. The same of which has been guaranteed under Article 14(3)(g) of
International Covenant on Civil and Political Rights (ICCPR) and Article 6(2) of
European Convention for Protection of Human Rights and Fundamental Freedoms. In
reference to this J. Marshall and Brennan held that “… at the end of the day the
presumption of innocent protects the innocent ; the shortcuts we take with those whom we
believe to be guilty injure only those wrongfully accused and , ultimately ourselves.”33

19. The twin conditions like these have been applied in certain other laws like Narcotic Drugs
and psychotropic Substances Act (NDPS Act), Terrorism and Disruptive Activities
(Prevention) Act (TADA Act) , Prevention of Money Laundering Act (PMLA) wherein
they are only applied when the crime committed is a heinous one i.e. when there is a
minimum punishment is extending upto 7 years 34. In the present case Ms. Quantisa has
not committed any heinous crime as none of the provisions which provide for a
punishment extending up to a minimum of seven years are applicable to her firstly
because the act did not accompany any mens rea and secondly because no substantial
harm was caused to any persons prone to the subsequent consequences. Also, SC held the
conditions mentioned in Sec. 45 of the PML Act ,which are similar to the twin conditions

31
Smt. Selvi and Others v. State of Karnataka, (2010) 2 MLJ (Crl) 908.
32
Ibid.
33
United States v. Anthony Salerno &Vincent Cafaro, (1987) 481 US 739.
34
Shilpa Mittal v. State of NCT of Delhi and Another, (2020) 2 MLJ (CRL) 89.

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mentioned in Sec. 439A Cr.PC., as ultra vires of the Constitution, those being in
contravention with Article 14 and 21 of the Ozalan Constitution 35.

20. Also, the conditions prohibit the Right of the accused to establish her innocence owing to
the substantial delay in the trial and filing of charges which is completely against criminal
jurisprudence and her Right to Speedy Trial36. The guarantee of a speedy trial was
designed to prevent three types of harm: lengthy imprisonment prior to trial, Anxiety
resulting from public accusation and the possible impairment of an individual’s ability to
defend himself37. In Strunk v. United States 38, it was held that an accused’s right to a
prompt inquiry into criminal charges is fundamental and the duty of the charging authority
is to provide a prompt trial. All of these harms in this case are being inflicted upon Ms.
Quantisa due to the delay in the trial and rejection of the bail application owing to these
twin conditions.

21. As the Blackstone Ratio positively holds “Better than ten guilty persons escape, than that
one innocent suffer”. Thus, it is humbly submitted that herein Ms. Quantisa’s arrest and
rejection of bail on grounds of the additional twin conditions amounts to be clearly in
contravention with personal liberty of the Petitioner which is guaranteed under Article 21
of Constitution of Ozala and the twin conditions do not fall into the purview of ‘procedure
established by law’ as they are unfair ,unjust and unreasonable based on the Criminal
jurisprudence of Ozalan Laws as well as International Conventions like UDHR and
ICCPR to which Ozala is a signatory.

22. It is most humbly submitted that the Procedure established by law under which the life
and liberty of an individual is sought to be curtailed, has necessarily, to satisfy the test of
reasonableness, justness and fairness and also the test of exclusion of arbitrariness and
irrationality. Hence, such a law has to pass the test of both, Art. 14 and Art. 21 of the
Constitution of Ozala. Therefore taking the above stated arguments into consideration it is
affirmative that the twin conditions are violative of Art. 14 and 21 of Constitution of
Ozala and Ms Quantisa's fundamental rights have been violated .
35
Supra note 16; Jignesh Kishorebhai Bhajiawala v. State of Gujarat & 1, LNIND 2018 Guj 295.
36
Katar Singh v. State of Punjab, (1994) SCC (3) 569, JT 1994 (2) 423, 1994 SCALE 1; Abdul R. Antulay v.
R.S.Nayak, (1988) SCR Supl.(1)1.
37
People v. Rehman, 253 Adv. Cal. App. 117, I62, 6i Cal. Rptr. 65, 94 (2d Dist. I967).
38
Strunk v. United States, (1973) 412 US 434.

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PRAYER

WHEREFORE IN THE LIGHT OF ISSUES RAISED, ARGUMENTS ADVANCED AND

The twin conditions mentioned under Section-439A of Code of Criminal Procedure of Ozala are
unconstitutional, being violative of Article 14 and 21 of the Constitution of Ozala.

AND PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT IT MAY DEEM
FIT IN THE INTEREST OF JUSTICE, FAIRNESS, EQUITY AND GOOD

CONSCIENCE,

FOR THIS ACT OF KINDNESS, THE PETITIONERS AS IN DUTY BOUND SHALL

Counsels for the Petitioner

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