URN:1795

XVII K.K. LUTHRA MEMORIAL MOOT COURT, 2021

IN THE SUPREME COURT OF OZALA

(Writ Jurisdiction)

Ms. Quantisa…………………………………………………………………….….. (Petitioner)

Vs.

The Union of Ozala and The State of Asper…………………………………………(Respondent)

MEMORIAL ON BEHALF OF THE PETITIONER

 XVII K.K. LUTHRA MEMORIAL MOOT COURT, 2021

TABLE OF CONTENTS

Table of contents…………………………………………………………………………………01

Abbreviation…………………………………………………………………………..………… 03

Index of authority…………………………………………………………………………..…… 04

Statement of jurisdiction …………………………………………………………………………06

Statement of fact ……………………………………………………………………………...….07

Issues raised ………………………………………………………………….………………….10

Summary of pleading ……………………………………………………………………………11

Pleadings…………………………………………………………………………...…………12-21

WHETHER THE ADDITIONAL CONDITION FOR GRANT OF BAIL UNDER

SECTION 439A OF CODE OF CRIMINAL PROCEDURE THAT REQUIRE A COURT
TO BE SATISFIED THAT THERE ARE “REASONABLE GROUNDS FOR
BELIEVING THAT A PERSON IS NOT GUILTY OF AN OFFENCE” AND THAT THE
PERSON “IS NOT LIKELY TO COMMIT ANY OFFENCE WHILE ON BAIL”
VIOLATE FUNDAMENTAL RIGHTS GUARANTEED UNDER THE
CONSTITUTION OF OZALA……………………………………………………….12-17

1. Twin condition violates fundamental rights of an individual………………………………..12

I. Twin Condition is violation of fundamental right……………………………….12

2. Twin conditions violates the doctrine of equality before law…………………………………12
(i) Equality before law violated by Anticipatory bail granted …………………..12
(ii) Violation of equality before law ……………………………………………..13
3. Twin Condition violates International Human Rights…………………………….…………14
(i) It violates the provisions of ICCPR………………………………………….14
4. Twin Condition violates the independence of judiciary……………………………..………15
I. Bail is discretionary power of court ……………………………………..………15
II. It also violated the doctrine of Presumption of innocence……………………….16

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5. Twin Condition violates right to life as The Doctrine of Fundamental Rights ensures right to
life to every individual………………………………………………………………………..16

WHETHER MS. QUANTISA IS ENTITLED TO BE RELEASED ON BAIL…………….18-21

1. The Conditions for granting bail were fulfilled………………………………………………18

(i) Ms. Quantisa is entitled to Speedy trial…………………………………………..18

(ii) Ms. Quantisa fulfilled the conditions of bail……………………………………..18
2. Ms. Quantisa must be considered innocent before proving guilty………………………19

3. The prosecution had burden of proof to prove Ms. Quantisa guilty……………………..20

4. Freedom of individual cannot be curtailed for indefinite time…………………………..21
5. Ms. Quantisa, as women, is entitled to get bail………………………………………….. 21

Player ……………………………………………………………………………………...……22

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 XVII K.K. LUTHRA MEMORIAL MOOT COURT, 2021

ABBREVIATIONS

AC Appeal Cases
AD Appellate Division
AIR All India Report
Art. Article
BLD Bangladesh Legal Decisions
Cal Calcutta
COVID Coronavirus Disease
DLR Dhaka Law Report
FPSP Fundamental Principles of State Policy
HCD High Court Division
ICCPR International Covenant on Civil and Political
Rights
ICESCR International Covenant on Economic, Social
and Cultural
Raj Rajasthan
SC Supreme Court
SCC Supreme Court Cases
Sec. Section
UDHR Universal Declaration of Human Rights
UN United Nations

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 XVII K.K. LUTHRA MEMORIAL MOOT COURT, 2021

INDEX OF AUTHORITIES

INTERNATIONAL, NATIONAL AND REGIONAL CASES

• Gudikanti Narasimhulu V. Public Prosecutor [(1978) 1 Scc 240 : 1978 Scc (Cri) 115]
• Gurcharan Singh V. State (Delhi Administration) [(1978) 1 Scc 118 : 1978 Scc (Cri) 41]
• Budhan Choudhry V. State Of Bihar, (1955) 1scr 1045 At 1049
• State Of Bombay And Anr. V. F.N. Balsara (1951) Scr682 At 708
• Nikesh Tarachand Shah Vs Union Of India & Abr Writ Petition (Criminal) No 67 Of
2017
• Kedar Nath Bajoria’s Case[(1954) Scr 30]
• Ranjitsing Brahmajeetsing Sharma V. State Of Maharashtra And Anr, (2005) 5 Scc 294
At 317, 318-319
• Rudul Sah V. State Of Bihar (1983 Cri Lj 1644)
• Kasturilal Ralia Ram Jain V State Of Uttar Pradesh 1965 Air 1039
• Peoples' Union For Democratic Rights Vs. State Of Bihar, (1987) 1 Scc 265: Air 1987 Sc
355
• Peoples' Union For Democratic Rights V. Police Commissioner 1990 Acj 192, (1989) 4
Scc 730
• S.N. Sharma, Personal Liberty Under Indian Constitution (1991)
• Maharashtra Vs. Sitaram Popat Vita Air 2004 Sc 4258
• Ram Govind Upadhyay Vs. Sudarshan Singh And Ors Air 2002 Sc1475
• Prahlad Singh Bhati Vs. N.C.T. Delhi And Ors Air 2001 Sc 1444
• Law Of Criminal Procedure , Professor Dr Sarkar Ali Akkas P.101
• Bachu Sheikh V Stete,1999 Mlr 111
• Nurul Huda State 2003 55 Dlr Ad 33,35
• Shivaji Saheb Rao Bobade
• Hussianara Khatoon V. Home Secretary
• Maneka Gandhi (1978) 1 Scc 248
• Hussianara Khatoon Vs. The State Of Bihar

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 XVII K.K. LUTHRA MEMORIAL MOOT COURT, 2021

• Woolmington V. Dpp (1935

• Dpp V. D O’t (2003)
• Chandra Shekhar V. State Of Himachal Pradesh
• Dataram Singh V. State Of Uttar Pradesh & Anr

ESSAYS, ARTICLES AND JOURNAL

• American Jurisprudence (2d, Volume 8, p. 806, para 39)

STATUTES LEGISLATIONS

• The constitution of Ozala, 1950

• Ozala penal code,1860
• The Epidemic Diseases Act, 1897
• the Terrorist and Disruptive Activities (Prevention) Act 1987
• Maharashtra Control of Organized Crime Act, 1999

Treaties and Conventions

• African Commission on Human and Peoples’ Rights, 1987

• International Covenant on Economic, Social and Cultural Rights 1976
• International Covenant on Civil and Political Rights 1976
• Universal Declaration of Human Rights (UDHR) 1948

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 XVII K.K. LUTHRA MEMORIAL MOOT COURT, 2021

STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Ozala has the jurisdiction in this matter under Article 32 of the
Constitution of Ozala which reads as follows: “Remedies for enforcement of rights conferred by
this Part-

(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.”

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 XVII K.K. LUTHRA MEMORIAL MOOT COURT, 2021

STATEMENT OF FACTS

BACKGROUND

Ozala is a developing country with one of the highest population country in the world and a
population density of 1500 persons per square kilometer cause almost one-third territory
constituted by an uninhabited desert, so most of the population resides in seven sisters. The state
of asper has longest territorial border with yada.

Lopasis is majority tribe in yada which has 10% of total population in ozala and 80%
are gumus tribe and 10% are others. asper is widely believed to be birthplace of the founder of
the vishlip sect of lopasis.

THE COVID-19 CATASTROPHE

Yada, first affected country, suppressed media to share information of severity of corona virus
which communicable from human to human. So, the COVID-19 spread to varies country which
has large travelers from yada. Varies countries, thereafter, imposed travel restrictions and
compulsory thermal scanning at airports after arrival from an international destination

MAKING OF NEW LAWS

From 10 march,2020 Ozala had found 15 cases by thermal scanning at international airports. The
government of asper issued the epidemic disease COVID-19 regulatins,2020 on 13 march,2020
wherein the term epidemic diseases was define COVID-19. The said regulations, iter alia,
prohibited all gatherings of more than 15 persons within the state. However, the government of
ozala had not placed many restrictions on travel within the country. On the same day, the code of
criminal procedure 1973 was amended and section 439A was introduced.

MS. QUANTISA ARRIVED IN ASPER FROM YADA

On 13 march four citizen including Ms. Quantisa, believe to be the reincarnation founder of sect,
arrived in asper from yada for annual congregation at the great temple of asper. All requirement
permissions from state government of asper from the event had been taken prior to the outbreak of
covid-19 in January-2020.

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On day before their schedule departure to ozala, certain officials in yada suggested them to cancel
visit cause ms quantisa showed flue-like symtoms. However, these officials prevail upon by others
who believe that a sudden cancellation of visit would send a negative international signal and
would be detrimental to the spread of beliefs of the sect. she agreed to be tested for COVID-19 on
the day of departure. On their flight to asper, she took anti-pyretic drugs and clear the airport
screening.

ANNUAL CONGREGATION

On 14 march, 58 visitors attended the program whom all from seven sisters. Police provide security
but they expressed no objection to the ceremony as social gathering- despite official orders to the
contrary.

Everyone’s shock when Ms Quantisa was seated on stage because they thought she might be
suffering from covid-19. She claimed that it was a common knowledge that she practiced cosmic
meditation, so can’t affect by the virus. She told if they drank holy water from her hand their
immunity against the disease would become strong. The attendees accept it, so they were walking
to the stage and drinking holy water from her hand cause she had a graduate degree in science.

MS. QUEANTISA TESTED POSITIVE

Ms Quantisa had to urgently hospitalized could not leave to yada because she developed high fever
and started facing breathing problems. The other three return to yada. On 16 march Ms. Quantisa
tested positive for COVID-19. Upon their return the other three had also tested positive for
COVID-19.

SPREAD OF COVID-19

The government able to trace all attendees. The attendees with several police officer, who were
deployed at the event, tested positive for COVID-19. There were no deaths amongst any of the
police officers/ attendees but two persons out of the attendees (both aged above 80 years) were
critically ill and required ventilator support. Nobody was affected further by these persons.

FILLING CASE AGAINST MS. QUANTISA

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At the behest of certain politicians, criminal law was set into motion and a first information report
was registered against ms quantisa for offences under section 188, 270, 325 and 308 of ozala penal
code,1860 read with section 3 of epidemic diseases Act 1897 on 22 march 2020. She was arrested
from hospital on the same day and she fully recovered within a week.

INVESTIGATION AND TRIAL

investigation revealed that Ms Quantisa had received a massage confirming that she tested positive
for COVID-19 on 14 march immediately after ceremony but she had not informed any person
regarding this massage. On 26 april, 2020 police submitted police report but trial of the court has
been suspended due to the pandemic, charge has not been framed in the matter and trial has not
commenced till date.

BAIL APPLICATION TO HCD

on 10 march, 2020 Ma Quantisa filed a bail application before the high court of asper inter alia
arguing that it is settled law that bail is the rule and jail is the exception. to allay apprehensions of
her fleeing from justice, she undertook to surrender her passport and reside at great temple of asper
until the conclusion of her trial. the high court rejected the application by placing, reliance on
section 439A of code of criminal procedure because twin condition of bail is not ensure. the court
further noted that she was accused of heinous offence and ought not to be released on bail.

WRIT PETITION BEFORE THE SUPREME COURT

Ms. Quantisa filed a writ petition before the Supreme Court challenging the constitutionality of
such twin condition of bail on the ground that the burden of proof cannot be reversed to keep a
presumably innocent person in indefinite custody.

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Issues Raised

Whether the additional condition for grant of bail under section 439A of code of criminal
procedure that require a court to be satisfied that there are “reasonable grounds for believing that
a person is not guilty of an offence” and that the person “is not likely to commit any offence while
on bail” violate fundamental rights guaranteed under the constitution of Ozala?

II

Whether Ms. Quantisa is entitled to be released on bail?

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 XVII K.K. LUTHRA MEMORIAL MOOT COURT, 2021

SUMMARY OF PLEADINGS

I. Whether the additional condition for grant of bail under section 439A of code of
criminal procedure that require a court to be satisfied that there are “reasonable
grounds for believing that a person is not guilty of an offence” and that the person “is
not likely to commit any offence while on bail” violate fundamental rights guaranteed
under the constitution of Ozala.
Twin condition violates fundamental rights of an individual as violates the doctrine of equality
before law. It also violated fundamental rights guaranteed under international instrument like
ICCPR and UDHR. Twin Condition violates the doctrine of Presumption of innocence and also
undermines the independence of judiciary as bail is discretionary power of court. Furthermore.
Twin Condition violates right to life as the Doctrine of Fundamental Rights ensures right to life to
every individual.

II. Whether Ms. Quantisa is entitled to be released on bail?

The Conditions for granting bail were fulfilled as Ms. Quantisa is entitled to speedy trial and she
fulfilled the conditions. She is entitled to bail as Ms. Quantisa must be considered innocent before
proving guilty and ehe prosecution had burden of proof to prove Ms. her guilty. Moreover, freedom
of an individual cannot be curtailed for indefinite time and she, as a woman, can claim bail as well.

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 XVII K.K. LUTHRA MEMORIAL MOOT COURT, 2021

PLEADINGS

I. WHETHER THE ADDITIONAL CONDITION FOR GRANT OF BAIL UNDER

SECTION 439A OF CODE OF CRIMINAL PROCEDURE THAT REQUIRE A COURT
TO BE SATISFIED THAT THERE ARE “REASONABLE GROUNDS FOR BELIEVING
THAT A PERSON IS NOT GUILTY OF AN OFFENCE” AND THAT THE PERSON “IS
NOT LIKELY TO COMMIT ANY OFFENCE WHILE ON BAIL” VIOLATE
FUNDAMENTAL RIGHTS GUARANTEED UNDER THE CONSTITUTION OF OZALA:

1. Twin condition violates fundamental rights of an individual

(i) Twin Condition is violation of fundamental right

Bail is considered as one of the fundamental rights guaranteed under the constitution. In Gudikanti
Narasimhulu v. Public Prosecutor1 the court held that 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. After all, personal liberty of an accused
or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law.
The last four words of Article 21 are the life of that human right.
In Gurcharan Singh v. State (Delhi Administration)2, it was observed by Goswami, J., who spoke
for the court, that there cannot be an inexorable formula in the matter of granting bail. The facts
and circumstances of each case will govern the exercise of judicial discretion in granting or
cancelling bail.

2. Twin conditions violates the doctrine of equality before law

(i) Equality before law violated by Anticipatory bail granted

If the twin conditions of Section 45(1) are to be satisfied at the stage of bail, the defendants will
have to disclose their defense at a point in time when they are unable to do so, having been arrested
and not being granted bail at the inception itself. Another conundrum raised by Section 45 is the
fact that, there being no interdict against anticipatory bail in the 2002 Act, and the Code of Criminal
Procedure applying to offences under the 2002 Act, it would be clear that anticipatory bail could

1
Gudikanti Narasimhulu v. Public Prosecutor [(1978) 1 SCC 240 : 1978 SCC (Cri) 115]
2
Gurcharan Singh v. State (Delhi Administration) [(1978) 1 SCC 118 : 1978 SCC (Cri) 41]

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be granted for both offences under the 2002 Act and predicate offences. This being so, unlike the
Terrorist and Disruptive Activities (Prevention) Act 1987, where anticipatory bail expressly cannot
be granted, the twin conditions of Section 45 would not apply at the anticipatory bail stage, which
would mean that a person charged of money laundering and a predicate offence could continue on
anticipatory bail throughout the trial without satisfying any of the twin conditions, as opposed to
a person who applies for regular bail, who would have to satisfy the twin conditions, which in
practice would mean denial of bail.

Bail is depend on circumstance of case. In American Jurisprudence (2d, Volume 8, p. 806, para
39), it is stated that where the granting of bail lies within the discretion of the court, the granting
or denial is regulated, to a large extent, by the facts and circumstances of each particular case.
Since the object of the detention or imprisonment of the accused is to secure his appearance and
submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a
recognizance or bond would effect that end.” It is thus clear that the question whether to grant bail
or not depends for its answer upon a variety of circumstances, the cumulative effect of which must
enter into the judicial verdict. Any one single circumstance cannot be treated as of universal
validity or as necessarily justifying the grant or refusal of bail.

(ii) Violation of equality before law

The principle of equality does not mean that every law must have universal application for all
persons who are not by nature, attainment or circumstances in the same position, and the varying
needs of different classes of persons often require separate treatment. The principle does not take
away from the State the power of classifying persons for legitimate purposes. While reasonable
classification is permissible, such classification must be based upon some real and substantial
distinction bearing a reasonable and just relation to the object sought to be attained, and the
classification cannot be made arbitrarily and without any substantial basis.” Also, it is well settled
that Article 14 condemns discrimination not only by substantive law, but also by procedural law.3

At this stage, it is important to advert to the tests for the violation of Article 14, both in its
discriminatory aspect and its “manifestly arbitrary” aspect. It is settled by a catena of cases that

3
Budhan Choudhry v. State of Bihar, (1955) 1SCR 1045 at 1049

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Article14 permits classification, provided such classification bears a rational relation to the object
sought to be achieved. In an early judgment of this Court, State of Bombay and Anr. v. F.N.
Balsara4, Fazl Ali, J. summarized the law as follows that the presumption is always in favor of the
constitutionality of an enactment, since it must be assumed that the legislature understands and
correctly appreciates the needs of its own people, that its laws are directed to problems made
manifest by experience and its discriminations are based on adequate grounds.

In Nikesh Tarachand shah vs union of india & ABR writ petition (criminal) no 67 of 2017 5, the
Court held that Section 45(1) of the Prevention of Money Laundering Act, 2002, insofar as it
imposes two further conditions for release on bail, to be unconstitutional as it violates Articles 14
and 21 of the Constitution of India. All the matters before us in which bail hasbeen denied, because
of the presence of the twin conditions contained in Section 45, will now go backto the respective
Courts which denied bail.

It must be noted, however, that this ratio was not held to be conclusive by this Court in Kedar
Nath Bajoria’6s case where this Court held that when a law like the present one is impugned on
the ground that it contravenes Article 14 of the Constitution the real issue to be decided is whether,
having regard to the underlying purpose and policy of the Act as disclosed by its title, preamble
and provisions, the classification of the offences for the trial of which the Special Court is set up
and a special procedure is laid down can be said to be unreasonable or arbitrary and therefore
violative of the equal protection clause.

3. Twin Condition violates International Human Rights

(i) It violates the provisions of ICCPR

Article 4 of the International Covenant on Civil and Political Rights stated that when there is public
emergency that threatens the life of the nation, the States Parties to the present Covenant may take
measures derogating from their obligations under the present Covenant to the extent strictly

4
State of Bombay and Anr. v. F.N. Balsara (1951) SCR682 at 708
5
Nikesh Tarachand shah vs union of india & ABR writ petition (criminal) no 67 of 2017
6
Kedar Nath Bajoria’s case[(1954) SCR 30]

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 XVII K.K. LUTHRA MEMORIAL MOOT COURT, 2021

required by the exigencies of the situation, but such measures are not inconsistent with their other
obligations under international law and do not involve discrimination solely on the ground of race,
color, sex, language, religion or social origin. Article 5 mentioned that there shall be no restriction
upon or derogation from any of the fundamental human rights recognized or existing in any State
Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext
that the present Covenant does not recognize such rights or that it recognizes them to a lesser
extent.

Article 10 of ICCPR also ensures that every persons deprived of their liberty shall be treated with
humanity and with respect for the inherent dignity of the human person. Moreover, everyone shall
have the right to recognition everywhere as a person before the law. 7 Article 26 states that every
persons is equal before the law and are entitled without any discrimination to the equal protection
of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth or other
status.

4. Twin Condition violates the independence of judiciary

(i) Bail is discretionary power of court

A provision in the Maharashtra Control of Organized Crime Act, 1999, also dealing with the great
menace of organized crime to society, was upheld somewhat grudgingly by this Court in
Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr8, as follows that we are
furthermore of the opinion that the restrictions on the power of the court to grant bail should not
be pushed too far. If the court, having regard to the materials brought on record, is satisfied that in
all probability he may not be ultimately convicted, an order granting bail may be passed. The
satisfaction of the court as regards his likelihood of not committing an offence while on bail must
be construed to mean an offence under the Act and not any offence whatsoever be it a minor or
major offence. If such an expansive meaning is given, even likelihood of commission of an offence

7
Article 16
8
Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr, (2005) 5 SCC 294 at 317, 318-319

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under Section 279 of the Indian Penal Code may debar the court from releasing the accused on
bail.
(ii) It also violated the doctrine of Presumption of innocence

Article 14 of the ICCPR stated that every person charged with a criminal offence shall have the
right to be presumed innocent until proved guilty according to law. Section 45 is a drastic provision
which turns on its head the presumption of innocence which is fundamental to a person accused
of any offence. Before application of a section which makes drastic inroads into the fundamental
right of personal liberty guaranteed by Article 21 of the Constitution of India, we must be doubly
sure that such provision furthers a compelling State interest for tackling serious crime. Absent any
such compelling State interest, the indiscriminate application of the provisions of Section 45 will
certainly violate Article 21 of the Constitution. Provisions akin to Section 45 have only been
upheld on the ground that there is a compelling State interest in tackling crimes of an extremely
heinous nature.

5. Twin Condition violates right to life as The Doctrine of Fundamental Rights ensures right to
life to every individual

The doctrine of fundamental rights is feature of United States law under which certain human
rights that enshrined in the US constitution are given a high degree of judicial deference in conflicts
between individual liberty and governmental intrusion. The term fundamental right is a technical
one, for when certain human rights are written down in a constitution and protected by
constitutional guarantees they are called fundamental rights. They are called fundamental rights in
that sense that they are placed in the supreme or fundamental law of the land which has a supreme
society over all other law of the land.

In those cases, the Supreme Court has granted relief both in case of tortious liability arising from
exercise of sovereign power and in case of violation and infringement of the fundamental right
guaranteed in the Constitution of India. In the case of Rudul Sah v. State of Bihar9, the Supreme
Court has awarded damages for infringement of fundamental right under Article 32 of the
Constitution of India. Following the aforesaid decisions subsequently the Supreme Court is of

9
(1983 Cri LJ 1644)

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consistent view which is completely departure from the principle laid down in the earlier Supreme
Court decision in the case of Kasturi Lal Ralia Ram Jain v. State of U.P.10, that where on account
of tortious act of the sovereign State a person's fundamental right to life and liberty was violated
the Court will grant compensation for damages suffered by that person. The liability is based on
the provisions of the Constitution and is a new liability, which is not hedged in by any limitation
including the doctrine of 'sovereign immunity'.

It seems the learned trial Judge has been influenced and/or swayed by the large number of
Supreme Court's decisions while awarding damages not only against the respondent No. 1 but also
against the respondent No. 2 personally. The Supreme Court in its various decisions has awarded
exemplary damages not only against the Government but the person involved in action or omission
in violation of fundamental right guaranteed under Part III of the Constitution of India.

To our mind the learned trial Judge with great respect, fell in error, for His Lordship has misapplied
remedy in public law field, in pure case of private law field. In our view the superior Court can
grant exemplary relief against the wrongdoer only in clear case of infringement of Fundamental
Rights and not otherwise. We shall now analyse the cases on which the learned trial Judge relied
heavily while granting relief.

In case of Peoples' Union for Democratic Rights V. State of Bihar11 the Supreme Court granted
compensation for death of 21 people who assembled for holding a peaceful meeting at a place in
Bihar and without any justification the police opened fire and as a result whereof they died. So this
compensation was awarded because of death of those people which amounted to infringement of
fundamental right.

In another case of Peoples' Union for Democratic Rights V. Police Commissioner12, Delhi Police
Headquarters the Supreme Court granted compensation against illegal and unauthorized act of the
police officials for forcing the laborers to do hard work without any payment and further outraging
of modesty of women laborers. No doubt, it was a case of infringement of Fundamental Right as
guaranteed under Article 21 of the Constitution of India.

10
Kasturilal Ralia Ram Jain v State of Uttar Pradesh 1965 AIR 1039
11
Peoples' Union for Democratic Rights vs. State of Bihar, (1987) 1 SCC 265: AIR 1987 SC 355
12
1990 ACJ 192, (1989) 4 SCC 730

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II. WHETHER MS. QUANTISA IS ENTITLED TO BE RELEASED ON BAIL?

1. The Conditions for granting bail were fulfilled

I. Ms. Quantisa is entitled to Speedy trial

The right to speedy trial has becomes a universally recognized human right, although the Indian
constitution did not guarantee the right. Article 21 of Indian Constitution has been the most favorite
center of judicial creativity and the right to speedy trial received the status of fundamental right
due to the liberal judicial interpretation of Article 21.13 In Maneka Gandhi case, the court laid
down that right to speedy trial is one of the off-shoots of the doctrine of fair, just and reasonable
procedure. Justice Bhagwati in Hussianara Khatoon v. Home Secretary held that though the right
was not specially guaranteed by the constitution of India, it was implicit in the broad sweep and
content of article 21. He also mentioned that mere semblance of procedure is not enough and
speedier trial meant reasonably expeditious trial. In the case of Hussianara Khatoon vs. the State
of Bihar, the court has made it settled decision that the right to speedy trial is an inalienable right
under Article 21 of the Indian Constitution.

II. Ms. Quantisa fulfilled the conditions of bail

At the time of deciding the application seeking bail, the Court should look at the prima facie
material available and should not go into the merits of the case by appreciation of evidence. At the
time of grant or denial of bail in respect of a non-bailable offence, the primary consideration is the
nature and gravity of the offence. The Hon'ble Supreme Court in the matter of State of
Maharashtra vs. Sitaram Popat Vita14 has stated few factors to be taken into consideration, before
granting bail, namely: i) The nature of accusation and the severity of punishment in case of
conviction and the nature of supporting evidence; ii) Reasonable apprehension of tampering of the
witness or apprehension of threat to the complainant; iii) Prima facie satisfaction of the Court in
support of the charge.

The Hon'ble Supreme Court in the matter of Ram Govind Upadhyay vs. Sudarshan Singh and
Ors15 while considering various factors for grant of bail has analyzed the scenario where the

13
S.N. Sharma, Personal Liberty under Indian Constitution (1991)
14
AIR 2004 SC 4258
15
AIR 2002 SC1475

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applicant has already been in custody and the trial is not likely to conclude for some time, which
can be characterized as unreasonable. The Hon'ble Supreme Court in the matter of Prahlad Singh
Bhati vs. N.C.T. Delhi and Ors16, has held that the condition of not releasing the person on bail
charged with an offence punishable with death or imprisonment for life shall not be applicable if
such person is under the age of 16 years or is a woman or is sick or infirm, subject to such
conditions as may be imposed. Other relevant grounds which play a vital role in deciding the bail
application are - the possibility for repetition of crime, the time lag between the date of occurrence
and the conclusion of the trial, illegal detention, and undue delay in the trial of the case.

2. Ms. Quantisa must be considered innocent before proving guilty

The presumption of innocence was established and firstly incorporated, by the United Nations in
its Declaration of Human Rights in 1948 under article eleven, section one, which states that
everyone charged with a penal offence has the right to be presumed innocent until proved guilty
according to law in a public trial at which he has had all the guarantees necessary for his defence.
It is also mentioned in the European Convention for the Protection of Human Rights in 1953 as
Article 6, Section 2 that everyone charged with a criminal offence shall be presumed innocent until
proved guilty according to law and was incorporated into the United Nations International
Covenant on Civil and Political Rights under Article 14, Section 2.

Our laws are based on the Common Law and equality of law. One of the important and well-known
principles is that a person is believed to be innocent till the guilt is proved against him. This
principle is called the Presumption of Innocence. In other words, accused is entitled to take
advantage of reasonable doubt in respect of his crime. This principle is being seen in countries
where executorial system is prevalent. In several European countries the Inquisitorial principle or
the principle based on inquiry is not being followed. But contrary to Indian Law in several
countries accused is considered to be an offender till he is proved to be innocent. Since India is
having executorial system, the law has accepted both these principles.

In the case of Shivaji Saheb Rao Bobade, the Supreme Court cautioned that though this doctrine
is very much useful, this golden rule has to be used with caution and cannot be used in any type of

16
AIR 2001 SC 1444

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doubt. Accused is to be given only a reasonable benefit of doubt. As such, if the principle of “even
if a thousand people may get acquitted, one innocent person should not be punished” is applied in
all cases and is relied upon indiscriminately, it may cause an adverse effect on the administration
of justice and the society may lose faith in it. Besides, it is not desirable to acquit or convict accused
wrongfully. Even if accused were given punishment wrongfully, this also would create an adverse
effect on the society. If accused is punished without adequate evidence against him, it also would
create a bad impression on the society and may have serious consequences on his family financially
and socially.

Therefore the judiciary should be very much alert while convicting anyone. In our country it is a
well-known slogan that even if ninety-nine guilty may get away one innocent person should not
be punished. This doctrine is being used extensively. In other words, we observe that our country
and our judiciary take a very lenient view in this respect. On the presumption of accused being
innocent, large numbers of accused get acquitted and only in a few cases the conviction is awarded.
Thus, this doctrine is used extensively in our country and bad elements of the society take full

The most generally recognized qualification of the presumption of innocence is that it serves as a
safeguard against wrongful convictions. This conception focuses on the dangers inherent in
conviction as such. It is the very nature of the consequences of being found guilty of a criminal
offence that is believed to necessitate the safeguarding of the defendant from wrongful convictions
by, firstly, adhering to the in dubio pro reo principle and, secondly, by burdening the prosecution
with proving guilt and thereby defeating the presumption of innocence.

3. The prosecution had burden of proof to prove Ms. Quantisa guilty

In Woolmington v. DPP (1935) the House of Lords held that the burden of proof always lies with
the prosecution and once a defense is raised the accused is entitled to be acquitted unless the
prosecution disproves that defense. In DPP v. D O’T (2003), Hardiman J. stated that the
presumption of innocence is a vital, constitutionally guaranteed, right of a person accused in a
criminal trial and that the right has been expressly recognized in all of the major international
human rights instruments currently in force. In fact Article 6(2) of the European Convention on

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Human Rights states that everyone charged with a criminal offence shall be presumed innocent
until proved guilty according to law.

4. Freedom of individual cannot be curtailed for indefinite time

The Court Chandra Shekhar v. State of Himachal Pradesh, stated that the freedom of an
individual is of utmost importance and cannot be curtailed for indefinite period, especially when
guilt, if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he
is deemed to be innocent. In Dataram Singh v. State of Uttar Pradesh & anr, it was held that
freedom of an individual cannot be curtailed for infinite period, especially when his/her guilt is yet
to be proved and must be considered innocent till found guilty.

5. Ms. Quantisa, as women, is entitled to get bail

Bail in non-bailable cases is a matter of discretion of the court17. in exercising judicial discretion
court should have regard to the gravity of the offence18 in case of Nurul Huda v. state19 when
the Court is called upon to exercise its judicial discretion it should not proceed upon any
Prior assumptions that in all cases where an offence punishable with death or imprisonment for
life is alleged, bail must be e a method of course be refused node can there be any rule of practice
on the basis of Which sucha discussion can be discretion can be Judiciary exercised. If there
appears reasonable ground of believing that the accused has been guilty of an offence punishable
with death or imprisonment for life, moreover, proviso to Section 437 of the CrPC makes an
exception that bail is the later case could be allowed on the grounds of tenderness of age
womanhood sickness or infirmity.
The Hon’ble Supreme Court in the matter of Prahlad Singh Bhati vs. N.C.T. Delhi and Ors, has
held that, the condition of not releasing the person on bail charged with an offence punishable with
death or imprisonment for life shall not be applicable if such person is under the age of 16 years
or is a woman or is sick or infirm, subject to such conditions as may be imposed.

17
Law of criminal procedure , professor dr sarkar ali akkas p.101
18
Bachu sheikh v stete,1999 MLR 111
19
Nurul Huda state 2003 55 DLR AD 33,35

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PLAYER

Ms. Queantisa respectfully requests that the Court to adjudge and declare:-

1. The additional condition for grant of bail under section 439a of code of criminal procedure
that require a court to be satisfied that there are “reasonable grounds for believing that a
person is not guilty of an offence” and that the person “is not likely to commit any offence
while on bail” violate fundamental rights guaranteed under the constitution of ozala.
2. Ms. Quantisa is entitled to be released on bail.

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