Tc-Amcc 05: 2Nd Amity University Madhya Pradesh National Moot Court Competition, 2018

2nd AMITY UNIVERSITY MADHYA PRADESH NATIONAL MOOT COURT
COMPETITION, 2018
TC- AMCC 05

COMPETITION, 2018
Before
THE HON’BLE SUPREME COURT OF INDUS
SLP No._ of 2018
UNDER ARTICLE 136 OF THE CONSTITUTION OF INDUS
MASAB KHAN…………….……………………………………………. PETITIONER
VERSUS
UNION OF INDUS……………………………………………………...RESPONDENT
IN THE MATTER CONCERNING JURISDICTION OF INDUS COURT,

CONTRAVENTION OF VIENNA CONVENTION, RIGHT TO BAIL AND FAIR
TRIAL
MEMORIAL ON BEHALF OF RESPONDENT
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TABLE OF CONTENTS
Index of Authorities………. ..….………………………………………………………......4
Statement of Jurisdiction..………...………….…………………………….……………….8
Statement of Fact………………………………………………………………….………..9
Statement of Issues...….…………………………………………………………..………10
Summary of Pleadings.……………………………………………………………..……..11
Arguments Advance…..…………………………………………………………………..13
[1] That the Special Leave Petition by the Accused is not Maintainable…………………13
[1.1] No exceptional and Special circumstances exist in this case ……………………….13
[1.2] Restriction in the Appellate Jurisdiction of Article 136……………………………..14
[1.3] Alternative remedy was not exhausted in this case………………………………….14
[2] The Court in Indus have the Jurisdiction to try Panjiksistan National Apprehended from
its Territory …………………………………………………………………………..…..15
[2.1] The offences committed by the alleged terrorist come under the ambit of intra
territorial jurisdiction as defined in Section 2 of the Indus Penal Code, 1860 …………..15
[2.2] The offences committed by the alleged terrorist comes under the purview of territorial
principles of International Law …………………………………………………………..17
[2.3] The apprehended Panjiksistan national does not come under the persons who are
exempted from jurisdiction of criminal court …………………………………………. .18
[3] The denial of consular access doesn’t contravene Vienna Convention ……………..19
[3.1] Rights are subject to certain restriction ………………………………………..…..20
[3.2] Kulbhushan Jadhav Case ………………………………………………………… .21
[4] The arrest and detention by Indus Army is legal in nature ……………………….….22
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[4.1] The arrest of the accused is legal in nature….……………………………………….22
[4.2] The detention was for the operational intelligence……………………………...….24
[4.3] The subsequent proceeding didn’t vitiate by the arrest in this case……………...…24
[5] The accused has no right to be released on Bail………………………………….…. 25
[5.1] Computation of the period start from the day of remand and not from the arrest…..25
[5.2] Section 167 of Cr.P.C. will apply to the arrest by police only……………………..26
[5.3] Special enactments will apply in this case….…………………………………...….27
[6] The accused is not entitled to get counsel from Panjiksistan for his defence…..……28
[6.1] Violation of Advocate Act, 1961……………………………………………………28
[6.2] Applicability of Vienna Convention ..……………………………………………...29
[7] No adverse publicity in this case and doesn’t affect the principle of Fair trial……….29
[7.1] Media is working as per the mandate and no adverse publicity by the media in this
case ………………………….…………………………………………………………...30
[7.2] Principle of Fair Trial is not Violated………………………..…………………….30
Prayer…………………………………………………………………………………….32
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INDEX OF AUTHORITIES
LIST OF CASES [INDIAN]
No. NAME OF THE CASE CITATION(s) PAGE

1. A.V. Venkateshwaran v. R.S. Wadhwani AIR 1961 SC 1906 14
2. Anand Singh v. State of Rajasthan 1999 Cri LJ 842 26
3. Asstt. Collector of Central Excise v. Jainson Hosiery AIR 1979 SC 1889 15

4. Bhagan v. State AIR 1955 AII 438 24
5. Bhanu Prasad v. State of Gujarat 1968 Cri LJ 1505: AIR 25
1968 SC 1323: 1968 SC
1026:1969 (1) SCR 22
6. CCE v. Standard Motor Products AIR 1989 SC 1298: 15
(1989) 2 SCC 2316
7. Central Bank of India v. Madhulika Guruprasad (2008) 13 SCC 17 14
Dahir
8. Chaganti Satyanarayana v. State of A.P. AIR 1986 SC 2130: 26
(1986) 2 SCC 141
9. Dalam Chand Baid v. Union of India 1982 Cri LJ 747 (Del) 27
10. Dev Dass v. State 1996 Cr LJ 1441 25
11. Dorai v. State of Karnataka 1994 Cri LJ 2987: 1994 25
(3) Crimes 697 (Kant.)
12. Elumalai v. State of Tamil Nadu 1983 LW (Crl) 121 26
13. Haripada Dey v. State of West Bengal AIR 1956 SC 757: 1956 14
SCR 639
14. In re Harijai Singh AIR 1997 SC 73 30
15. Indian Express Newspapers (Bombay) (P) Ltd. v. (1985) 1 SCC 641 30
Union of India
16. Kunhayammed v. State of Kerala AIR 2000 (SC) 14
2587(2595): 2000 (6)
SCC 359
17. Lee Kun Lee v. State of U.P. (2012) 3 SCC 132 16
18. Mahesh v. Delhi (1991) Cr LJ 439 14
19. Mobarak Ali Ahmed v. State of Bombay AIR 1957 SC 857 16
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20. Mohammad Khalil Chisti v. State of Rajasthan 2013 Cr LJ 637 (649) 13

(SC): (2012) 12 SCALE
254
21.. Mulla Singh v. State AIR 1968 AII 132: 1968 24
Cri LJ 435
22. Munnilal v. State 1970 ALJ 762 24
23. N. Suriyakala v. A. Mohandoss (2007) 9 SCC 196: (2007) 13
3 JT 266
24. Narpat Singh v. Jaipur Development Authority (2002) 4 SCC 666:AIR 13
2002 SC 2036
25. Nautam Praksah DGSVC v. K.K. Thakur (2006) 5 SCC 330: AIR 23
2006 SC 2075
26. Printers (Mysore) Ltd. v. CTO (1994) 2 SCC 434 30
27 Pritam singh v. The State AIR 1950 SC 169: 1950 13
SCR 453
28. Rajeev Chaudhary v. State (NCT) of Delhi 2001 Cri LJ 2941: (2001) 25
5 SCC 34: 2001 SCC
(Cri) 819
29. Rajkrishna bose v. Binod Kanugo AIR 1954 SC 202(204) 15
1954 SCR 913
30. Ram Jag v. State of Uttar Pradesh AIR 1974 1974 SC 606: 14
(1974) 4 SCC 201
31. S.K. Nair v. State of Punjab 1984 Cr LJ 1090 26
32. Sadhu Singh v. Pepsu AIR 1954 SC 271: 1954 14
Cr LJ
33. Saleem-ud-Din v. State (1971) ILR 1 DEL 432 17
34. Sambhu Das v. State of Assam (2010) 10 SCC 374: 13
(2010) 3 SCC (Cri) 1301
35. Shivanna v. State 1992 Cr LJ 2287 (2282) 26
(Kant): ILR 1992 Kar
2610
36. State of A.P. v. NTPC Ltd. (2002) 5 SCC 203: AIR 23
2002 SC 1895
37. State of Bihar v. Kameshwar Prasad Singh AIR 2000 SC 2306: 14
(2000) 9 SCC 94
38. State of U.P. v. Anil Singh AIR 1988 SC 1988: 1988 14
Supp SCC 686
39. State of UP v. Pheru Singh AIR 1989 SC 1205: 1989 14
Supp (1) SCC 288
40. State of Uttar Pradesh v. Ballabh Das AIR 1985 SC 1384: 14
(1985) 3 SCC 703
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41. State of Uttar Pradesh v. Ram Swarup AIR 1988 SC 1028: 1988 14
Supp SCC 262
42. State v. Ramchandra AIR 1968 AII 132: 1968 24
Cri LJ 435
43. Zahira Habibullah Sheikh & Anr vs State of 2004 4 SCC 158 30
Gujarat
FOREIGN CASES
1. Congo v. Belgium ICJ Reports, 2002, ¶3,36 18

2. Holmes v. Bangladesh Binani Corporation [1989] 1 AC1112, 1137 18
3. Jadhav (India v. Pakistan), Provisional I.C.J. Reports 2017, p. 231 21
Measures
4. Re The Parlement Belge (1880) 5 PD 197 19
BOOKS
1. Acharya D.D. Basu, Commentary on Constitution of India, Vol.5, 8th Edn. Lexis
Nexis Butterworth’s Wadhwa, 2009.
2. M.P. Jain, Indian Constitutional Law, Vol.1, 6th Edn., Lexis Nexis, 2010.
3. Malcolm N. Shaw, International Law, Vol.1, 8th Edn., Cambridge University Press,
2017
4. Manoj Kumar Sinha, Handbook on Legal Instruments on International Human
Rights, Vol.1, 1st Edn., Lexis Nexis, 2014
5. P.C. Banerjee, Criminal Trial and Investigation, Vol.2, 5th Edn., Orient Publishing
Company, 2013.
6. P.K. Das, International Law Documents, Vol., 2nd Edn., Universal Law Publishing,
2003.
7. Prabhakar Singh and Benoit Mayer, Critical International Law, Vol.1, 2nd Edn.,
Oxford, 2017.
8. PSA Pillai, Criminal Law, Vol.1, 13th Edn., Lexis Nexis, 2017.
9. R.V. Kelkar, Criminal Procedure, Vol.1, 6th Edn., EBC, 2016.
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10. Ratanlal & Dhirajlal, The Code of Criminal Procedure, Vol.1, 20th Edn., Lexis
Nexis, 2016.
11. V.N. Shukla, Constitution of India, Vol.1, 13th Edn., EBC, 2017.
LEXICONS
1. Black, Henry Campbell, Black’s Law Dictionary, 6th Ed., Centennial Ed. (1891-
1991)
2. P. Ramanatha Aiyar’s, The Law Lexicon, 2nd Edn, Lexis Nexis Butterworth’s
Wadhwa, 2009.
STATUTES
1. The Constitution of India, 1950

2. The Code of Criminal Procedure, 1973
3. Indian Penal Code, 1860
4. Armed forces (Jammu & Kashmir) Special Powers Act, 1990
5. The Unlawful Activities (Prevention) Act, 1967
6. Prevention of Damage to Public Property Act, 1984
7. The Advocate Act, 1961
8. Statute of the International Court of Justice 1946
INTERNATIONAL TREATIES, CONVENTIONS, AGREEMENT
1. Agreement on Consular Access between the Government of the Islamic Republic

of Pakistan and the Government of the Republic of India, 2008
2. International Covenant on Civil and Political Rights, 1966
3. Optional Protocol Concerning the Compulsory Settlement of Disputes, 1963
4. Universal Declaration of Human Rights, 1948
5. Vienna Convention on Consular Relations, 1963
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STATEMENT OF JURISDICTION
The petitioner humbly and respectfully approached this Hon’ble Supreme Court under
article 136 of the Constitution of India, that reads:
Special leave to appeal by the Supreme Court,
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or order
in any cause or matter passed or made by any court or tribunal in the territory of India
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.
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STATEMENT OF FACTS
1. Indus, officially known as the republic of Indus, is located in south central Asia, Panjiksistan
got separated from Indus in 1947 and since then relations between these two countries have
been strained. In 1965, 1971 and 1999 Panjiksistan attacked Indus and faced humiliating
defeat. After tasting continuous defeat in conventional war, they established launch pads to
strike terror attack in Indus and harbouring and training terrorists in occupied territory of
state of Pammu and Pashmir.
2. On 23 Nov 2015, twelve terrorists, trained by Panjiksistan military and spy agency ISO left
Panjiksistan for trombay via sea, they entered three days later by hijacking a boat owned by
fisherman and killing them enroute and targeted high profile place. 180 people including 20
police officers and 4 commandos killed and 410 severely injured. On 25 Sep 2016 terrorists
trained in Panjiksistan entered military units by donning army uniforms and killed soldiers.
3. The Indus Government could not take these anymore and in right of private defence as
enshrined in Article 51 of the UN Charter decided to destroy the launch pads and terrorist
hide outs and training areas in Panjiksistan and Panjiksistan occupied Pammu and Pashmir.
The surgical strike was carried out on 7 October 2016 in the Panjiksistan occupied Pammu
and Pashmir and destroyed launch pads and hideouts of terrorists and caught one terrorist
alive namely Masab Khan from Panjiksistan occupied Pammu and Pashmir for getting
operational intelligence and also to prove to the world that Panjiksistan was sponsoring
terrorism from the soil under its control.
4. The terrorists were in custody of army for 30 days, investigation also revealed that
apprehended terrorist was the one who had masterminded the terror attack in Indus and he
also made confessional statement to that effect before the magistrate of competent
jurisdiction. After the army handed over to ATS and the accused was in custody of ATS for
70 days, during which the accused applied for bail. Aggrieved by the Surgical strike
Panjiksistan approached ICJ. In this suit accused claimed that the court of Indus has no
jurisdiction, he is entitled for bail as charge sheet not filed within 90 days, and requested
counsel of his choice from Panjiksistan and also mentioned about the Media trial. Accused
filed Special Leave Petition before the Apex Court as the lower courts rejected the accused
contentions.
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STATEMENT OF ISSUES
ISSUE 1- WHETHER THE SPECIAL LEAVE PETITION FILED BY THE ACCUSED IS

MAINTAINABLE?
ISSUE 2- WHETHER THE COURT IN INDUS HAVE THE JURISDICTION TO TRY

PANJIKSISTAN NATIONAL APPREHENDED FROM ITS TERRITORY?
ISSUE 3- WHETHER NOT GIVING CONSULAR ACCESS TO THE ACCUSED WOULD

CONTRAVENE THE VIENNA CONVENTION ON CONSULAR RELATIONS?
ISSUE 4- WHETHER THE ARREST AND DETENTION BY INDUS ARMY WAS ILLEGAL IN
NATURE?
ISSUE 5- WHETHER THE ACCUSED HAD A RIGHT TO BE ENLARGED ON BAIL AS THE

CHARGE-SHEET WAS NOT FILED WITHIN THE STATUTORY PERIOD OF 90 DAYS?
ISSUE 6- WHETHER THE ACCUSED IS ENTITLED TO GET COUNSEL FROM PANJIKSISTAN

FOR HIS DEFENCE?
ISSUE 7- WHETHER THE ADVERSE PUBLICITY IN MEDIA AFFECT THE PRINCIPLE OF FAIR
TRIAL?
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SUMMARY OF PLEADINGS
ISSUE 1- WHETHER THE SPECIAL LEAVE PETITION FILED BY THE ACCUSED IS
MAINTAINABLE?
It is humbly submitted before this Hon’ble court that the special leave petition filed by the
accused is not maintainable as there is no exceptional circumstances or miscarriage of
justice in the given case. Apart from that there are ample of restriction in invoking the
appellate jurisdiction under article 136 of the constitution of India. Furthermore, the
alternative remedy was not exhausted in this case i.e., Article 134 which states that
appellate jurisdiction of Supreme court with regard to criminal matters.
ISSUE 2- WHETHER THE COURT IN INDUS HAVE THE JURISDICTION TO TRY PANJIKSISTAN
NATIONAL APPREHENDED FROM ITS TERRITORY?
The court in Indus have the jurisdiction to try panjiksistan national apprehended from its
territory as the offence was committed within the territorial boundary of Indus as
mentioned in the territorial jurisdiction of the Indian penal code and the International Court
of Justice has no jurisdiction to entertain this case.
In the instant case not providing consular access doesn’t contravene the vienna convention
on the consular relations as the establishment of consular relation take place by mutual
consent and according to the clause 6 of agreement on consular access between the
government of republic of Panjiksistan and the government of republic of Indus.
NATURE?
The arrest in the instant case was as per the power of Indus army mentioned in the Armed
forces (Pammu & Pashmir) Special Powers Act in which the commissioned officers has
the power to arrest any person in the disturbed area. Also we know that parliament itself
declared that the Panjiksistan occupied Pammu & Pashmir is an integral part of Indus this
means that the act is also applicable in that concerning area.
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The accused in the instant case has no right to be enlarged on Bail as section 167(2) of
CrPC applied only to arrest by the police, further the computation of the period of 90 days
start from the time of remand and not from the arrest, that’s why in the instant case the
statutory period of 90 days was not completed and the accused can’t be released on Bail.

FOR HIS DEFENCE?
The accused is entitled to get the counsel of his choice but not from the Panjiksistan as the
provision in the constitution and also in Cr.P.C. doesn’t entitle the accused to have legal
practitioner from the other country. The only thing that require in fair trial is the impartial
judge which is available in the instant case.
TRIAL?
As in the instant case there is no such incident to justify that there is adverse publicity by
the media, as the media has the freedom implicit under fundamental right which cannot be
restricted and the contention of the petitioner that the accused did not expect fair trial in
Indus because of the media cannot be taken into consideration. Also a responsible press is
a handmaiden of effective judicial administration. Media has wide ranging roles and plays
a vital role in shaping the opinion of the society. Thus, media doesn’t affect the principle
of Fair trial.
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ARGUMENT ADVANCED
ISSUE 1- WHETHER THE SPECIAL LEAVE PETITION FILED BY THE

ACCUSED IS MAINTAINABLE?
It is humbly submitted before this Hon’ble court that the Special leave petition by the
accused is not maintainable in this case because the judgment of the lower courts is as per
the judicial standard and no exceptional circumstances or grave injustice exists in this case.
The submission in this is three folded [1.1] No exceptional and special circumstances exist
in this case [1.2] Restriction in the appellate jurisdiction of Article 136 [1.3] Alternative
remedy was not exhausted in this case.
[1.1] No exceptional or special circumstances exist in this Case
In Pritam singh v. The State1, the Supreme Court has emphasized that “this court will not
grant special leave, unless it is shown that exceptional and special circumstances exist, that
substantial and grave injustice has been done and that the case in question presents features
of sufficient gravity to warrant a review of the decision appealed against”.
The exercise of jurisdiction conferred by Art. 136 of the constitution on this court is
discretionary. It doesn’t confer a right to appeal on a party to litigation; it only confers a
discretionary power on this court to be exercised for satisfying the demands of justice. On
the one hand, it is an exceptional power to be exercised sparingly, with caution and care
and to remedy extraordinary situations or situations occasioning gross failure of justice; on
the other hand, it is an overriding power where under the court may generously step in to
impart justice and remedy justice.2
In this case there is no special or exceptional circumstances exist as from the law it is
cleared that the court in Indus have the jurisdiction to try Panjiksistan national apprehended
1
AIR 1950 SC 169: 1950 SCR 453.
2
Narpat Singh v. Jaipur Development Authority, (2002) 4 SCC 666, at 674: AIR 2002 SC 2036. N.
Suriyakala v. A. Mohandoss, (2007) 9 SCC 196: (2007) 3 JT 266; Mohammad Khalil Chisti v. State of
Rajasthan, 2013 Cr LJ 637 (649) (SC): (2012) 12 SCALE 254; Sambhu Das v. State of Assam, (2010) 10
SCC 374: (2010) 3 SCC (Cri) 1301.
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from its territory and in the entire trial there is not any contravention of Vienna convention
on consular relations, furthermore, the arrest was legal in this case and doesn’t vitiate any
proceedings.
[1.2] Restriction in the appellate jurisdiction of Article 136
The constitutional provisions confer a plenary jurisdiction on the court. Nevertheless, the
court has sought to impose on itself some restrictions in exercising this vast appellate
jurisdiction. This has been done with a view to reduce the flow of appeals to itself so that
it is not faced with a huge backlog of cases3. The supreme court, however, does not grant
leave to appeal in criminal matters liberally. It does so only when exceptional and special
circumstances exist, substantial and grave injustice has been done, and the case in question
presents features of sufficient gravity to warrant a review of the decision appealed against,
or there has been departure from legal procedure such as vitiates the whole trial or if the
finding of the fact “were such as were shocking” to the judicial conscience of the court4.
Furthermore, it is not the policy of this court to entertain special leave petitions and grant
leave under article 136 of the constitution save in those cases where some substantial
question of law of general or public importance is involved or there is manifest injustice
resulting from the impugned order or judgment5.
[1.3] Alternative remedy was not exhausted in this case
It is humbly submitted that alternative remedy is a bar unless there exists complete lack of
jurisdiction or authority to take action impugned.6 Ordinarily the supreme court would
3
State of Bihar v. Kameshwar Prasad Singh, AIR 2000 SC 2306: (2000) 9 SCC 94.
4
Sadhu Singh v. Pepsu, AIR 1954 SC 271: 1954 Cr LJ; Haripada Dey v. State of West Bengal , AIR 1956
SC 757: 1956 SCR 639; Ram Jag v. State of Uttar Pradesh, AIR 1974 1974 SC 606: (1974) 4 SCC 201; State
of Uttar Pradesh v. Ballabh Das , AIR 1985 SC 1384: (1985) 3 SCC 703; State of Uttar Pradesh v. Ram
Swarup, AIR 1988 SC 1028: 1988 Supp SCC 262; State of UP v. Pheru Singh, AIR 1989 SC 1205: 1989
Supp (1) SCC 288; Mahesh v. Delhi (1991) Cr LJ 439; State of U.P. v. Anil Singh, AIR 1988 SC 1988: 1988
Supp SCC 686.
5
Kunhayammed v. State of Kerala, AIR 2000 SC 2587(2595): 2000 (6) SCC 359; Central Bank of India v.
Madhulika Guruprasad Dahir, (2008) 13 SCC 17.
6
A.V. Venkateshwaran v. R.S. Wadhwani, AIR 1961 SC 1906.
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refuse to entertain appeal under art.136 from the order of an inferior court where the
litigants has not availed himself of the ordinary remedies available to him at law7. Article
136 for it not being a regular forum of appeal. Article 136 is residuary power of the SC and
are class apart & sui juris8. Where there is alternative statutory remedy the court should not
interfere unless the alternative remedy cannot grant quick relief9. Appellate power vested
in the Supreme court under Art.136 of the constitution is not to be confused with ordinary
appellate power exercised by appellate courts and appellate tribunals under specific
statutes. It is a plenary power ‘exercisable outside the purview of ordinary law’ to meet the
pressing demand of justice. In the instant case the accused can also approach Hon’ble
Supreme court under article 134 which talk about appellate jurisdiction of Supreme Court
with regard to criminal matters.
ISSUE 2- WHETHER THE COURT IN INDUS HAVE THE JURISDICTION TO TRY PANJIKSISTAN
NATIONAL APPREHENDED FROM ITS TERRITORY?
It is humbly submitted before the Hon’ble court that the court of Indus has jurisdiction to
try the Panjiksistan national apprehended from its territory. The court in Indus can exercise
its jurisdiction in trying the alleged terrorist. The submission in this issue is three folded.
territorial jurisdiction as defined in Section 2 of the Indus Penal Code, 1860. [2.2] The
offences committed by the alleged terrorist comes under the purview of territorial
principles of International Law [2.3] The apprehended Panjiksistan national does not come
under the persons who are exempted from jurisdiction of criminal court.
territorial jurisdiction as defined in section 2 of the Indus Penal Code, 1860
The offences committed by the accused Masab Khan come under the purview of intra
territorial jurisdiction of courts in Indus. Every person shall be liable to punishment under
this Code and not otherwise for every act or omission contrary to the provisions thereof, of
7
Rajkrishna bose v. Binod Kanugo, AIR 1954 SC 202(204) 1954 SCR 913.
8
CCE v. Standard Motor Products, AIR 1989 SC 1298: (1989) 2 SCC 2316.
9
Asstt. Collector of Central Excise v. Jainson Hosiery, AIR 1979 SC 1889
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which he shall be guilty within [India]10. This section deals with the intra-territorial
operation of the code and it makes the code universal in its application to every person in
any part of Indus for every act or omission contrary to the provisions in this code. It
prescribes no fixed time within which prosecution should be launched, as it follows the
maxim Nullum tempus Occurit regi11. A foreigner who commits an offence within Indus
is guilty and can be punished as such without any limitation as to his corporeal presence in
Indus at the time12. The offences under which the accused has been charged were
committed in Trombay which is within the territory of Indus and hence it gives the power
to the court in Indus to try the alleged Panjiksistan national. Indus courts have jurisdiction
against foreigners residing in foreign countries but their acts connected with transaction or
part of transaction arising in Indus13. Attack was made on Trombay and these terrorists
targeted high profile places including railway station terminals, premier hotels and
hospitals killing innocent persons14. It is clearly evident from the above facts that the act
was committed in Indus and the accused is Panjiksistan national which makes him a
foreigner and that gives the jurisdiction as his act is connected with acts arising in Indus.
The crucial aspect to be noted here is that the Code makes no distinction between an Indus
citizen and a foreigner, for offences committed in Indus15. Prima facie, the IPC is intended
to deal with all unlawful acts and omissions defined to be offences and committed with
Indus and to provide for the punishment thereof of the person or persons found guilty
therefor16. The above mentioned aspects also apply to the present context as Masab Khan
is a foreigner and no distinction will be made between him and the citizen of Indus and he
will be dealt with IPC and that will empower the courts to try him. The Supreme Court
perceiving that the basis of jurisdiction under Section 2 of the IPC is the locality where the
offence committed and that the corporal presence of the offender in the Indus is immaterial,
10
Indian Penal Code, No. 45 of 1860 §2, (1860).
11
Ratanlal & Dhirajlal, The Indian Penal Code 11(1st ed. 2014).
12
Mobarak Ali Ahmed v. State of Bombay, AIR 1957 SC 857
13
Lee Kun Lee v. State of U.P., (2012) 3 SCC 132.
14
Page 2 ¶.4 Moot Proposition.
15
Supra note 12.
16
RA Nelson, Indian Penal Code 40 (10th ed. 2008).
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upheld conviction of Mobarak Ali, a Pakistani national, for cheating even though he, while
staying in Karachi, made false representations through letters17. Same circumstance prevail
in the present context also as Masab Khan admitted that he was “mastermind” behind the
attack, who provided training to these terrorists and financial aid to these terrorists18. So he
was not present physically but that will not prevent him from his criminally liability under
the Indus Penal Code. Similarly, if a foreigner, not residing in Indus, starts the train of his
crime out of Indus, but the crime is completed in Indus, he will be liable under the IPC19.
The above case applies to the facts of the present scenario also as the accused was the
mastermind behind the attack and he provided training and funding which implies that he
started the course of his crime out of Indus but the offence was committed within Indus
which tells that Indus will have the jurisdiction to try the accused.
For coming under the purview of intra territorial jurisdiction the offence must be committed
by a person. Section 2 makes all persons, irrespective of their nationality, rank, race,
religion or caste, liable to be punished under the Penal Code20.The plain meaning of the
phrase ‘every person’ is that it comprehends all persons without limitation and irrespective
of nationality, allegiance, rank, status, caste, color or creed 21.So it is clear from the above
definitions that Masab Khan will come under the ambit of ‘every person’ as the definitions
does not distinguishes any person for nationality and a person of any nationality can be
tried and punished in the court if the offence is committed within Indus.
[2.2] The offences committed by the alleged terrorist comes under the purview of
territorial principles of International Law
International law permits states to exercise jurisdiction (whether by way of legislation,

judicial activity or enforcement) upon a number of grounds. It was held in the Wood pulp
case22 that ‘the two undisputed bases on which state jurisdiction are founded in
17
Supra note 12.
18
19
Saleem-ud-Din v. State, (1971) ILR 1 DEL 432.
20
PSA Pillai, Criminal Law 455 (5th ed. 2011).
21
Supra note 12.
22
Re Wood Pulp Case [1998] 4 CMLR 901 p.148.
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International Law are territoriality and nationality. A country should be able to legislate
with regard to activities within its territory and to prosecute offences committed upon its
soil and it is a logical manifestation of a world order of independent states and is entirely
understandable since authorities of a state are responsible for the conduct of law and the
maintenance of good order within that state. Majority of criminal prosecutions take place
in the territory where the crime has been committed 23. It is also highly convenient since in
practice the witnesses to the crime will be situated in the country24.
Thus, all crimes committed (or alleged to have been committed) within the territorial
jurisdiction of a state may come before the municipal courts and the accused if convicted
may be sentenced. This is so even where the offenders are foreign citizens 25.The above
ratio of the case applies to the present scenario also as the accused is a Panjiksistan national
which makes him a foreigner and the crime that is committed by the accused has been
committed within the territory of Indus so he will come under the jurisdiction of courts in
Indus.
[2.3] The apprehended Panjiksistan national does not come under the persons who
are exempted from jurisdiction of criminal court
Though section 2 of IPC provides that all persons, irrespective of their nationality, rank,
race, religion or caste, liable to be punished under the Penal Code, there are some persons
who are kept outside the jurisdiction of criminal courts. Such exemptions are premised on
constitutional or statutory provisions or some well-established and practiced norms of
public international law. A mention of these categories, here below, will suffice this
purpose26.
23
Malcolm N. Shaw, INTERNATIONAL LAW, 653-654 (6th ed. 2008).
24
Congo v. Belgium, ICJ Reports, 2002, ¶3,36
25
Holmes v. Bangladesh Binani Corporation [1989] 1 AC 1112, 1137.
26
Supra note 20.
18
COMPETITION, 2018
(I) No criminal proceedings whatsoever shall be instituted or continued against the

President, or the Governor of a State, in any court during his term of office27.So the accused
Masab Khan does not falls under this category as he is not the president of the country.
(II) In accordance with well-recognized principles of international law, foreign sovereigns

are exempt from criminal proceedings in Indus, the principle being that the exercise of such
jurisdiction would be incompatible with the real dignity28. The accused in the present case
is not a foreign sovereign and hence he can’t be categorized as an exception.
(III) This immunity is also enjoyed by the ambassadors and diplomats of foreign countries
who have official status in Indus29. The alleged Panjiksistan terrorist is not a diplomat or
an ambassador which exempts him from this list.
(iv) There is a partial exception as a result of international courtesy, in the case of a ship of
war on the high seas, the officers and crew of which are exempt from the local law in all
that concerns the discipline and internal government of the ship, and on boards where
neither civil nor criminal process can be executed30. The present scenario of the case is not
of the ship of war and is not related with men of war and hence the accused can’t come
under this category also.
(v) When armies of one State are by consent on the soil of a foreign State they are exempted
from the jurisdiction of the State on whose soil they are31.Here in the present context the
accused is not of army of a state, he is just a foreigner who is a Panjiksistan national and
hence he will be exempted from this category.
It is humbly submitted before the court that the denial of consular access to the accused
person would not contravene the Vienna Convention on Consular Relations 1963 as Article
27
INDIA CONST. art. 361, cl. 2.
28
Re The Parlement Belge (1880) 5 PD 197
29
Supra note 20.
30
James Fitz James Stephen, History of the Criminal Law of England 46, (1883).
31
Ratanlal & Dhirajlal, The Indian Penal Code 13 (1st ed. 2014).
19
COMPETITION, 2018
36(1) of the Vienna Convention on Consular Relations explains upon the rights that are
given to the national of the sending state who is in prison for getting consular access.
Consular officers shall have the right to visit a national of the sending State who is in
prison, custody or detention, to converse and correspond with him and to arrange for his
legal representation. They shall also have the right to visit any national of the sending State
who is in prison, custody or detention in their district in pursuance of a judgment 32. The
nationals have the right to consular access but there are subjected to certain restrictions.
The rights referred to in paragraph 1 of this Article shall be exercised in conformity with
the laws and regulations of the receiving State33. The submission in this is two folded [3.1]
Rights are subject to certain restriction [3.2] Kulbhushan Jadhav Case.
[3.1] Rights are subject to certain restriction
So the rights that are referred in article 36(1) are subjected to the confirmation of the laws
and regulations of the receiving state and the above provision clearly implies that the denial
of consular access necessarily does not contravene the Vienna convention of consular
access as these rights are subjected to certain restrictions. States between which consular
relations would establish require a certain procedure. The establishment of consular
relations between States takes place by mutual consent34. For establishment of the consular
relations between states to occur, an agreement on consular access between the
Government of Islamic Republic of Panjiksistan and the Government of Republic of Indus
has been made on 21 May 2008. In case of arrest, detention or sentence made on political
or security grounds each side may examine the case on its merits35. The above clause of
the agreement clearly applies to the present case as the arrest and detention of the alleged
Panjiksistan national was arrested on the security grounds by the Indus army and his
detention was made on security grounds. Clause 6 of the agreement gives the clear
discretion to both the nations who have signed the agreement to examine and decide the
32
Vienna Convention on Consular Relations art. 36(1)(c), April 22, 1963, 500 U.N.T.S.93.
33
Vienna Convention on Consular Relations art. 36(2), April 22, 1963, 500 U.N.T.S.93.
34
Vienna Convention on Consular Relations art. 2(1) April 22, 1963, 500 U.N.T.S.93.
35
The Agreement on consular access between the Government of the Islamic Republic of Pakistan and the
Government of the Republic of India. Islamabad, 21 May 2008, 54471.
20
COMPETITION, 2018
case on its own merits. It implies that not giving of the consular access to the accused would
not contravene the Vienna Convention on Consular Relations as the consular access is
denied as per the agreement done between the two countries. The provisions of the present
Convention shall not affect other international agreements in force as between States
parties to them36.So the rights given in the Article 36 of the convention shall not affect the
agreement on consular access made by the government of Islamic Republic of Panjiksistan
and the Government of Republic of Indus. Nothing in the present Convention shall preclude
States from concluding international agreements confirming or supplementing or
extending or amplifying the provisions thereof37.
[3.2] Kulbhushan Jadhav Case
In the Kulbhushan Jadhav Case38 Panjiksistan avers that the facts alleged in the Application
fall within the scope of the 2008 Agreement, which “limit[s] and qualif[ies] or
supplement[s]” the Vienna Convention. It refers to Article 73(2) and it considers that the
2008 Agreement “amplifies or supplements [the Parties’] understanding and the operation
of the Convention”. In this regard, Panjiksistan calls attention to subparagraph (vi) of the
2008 Agreement, which provides that “in case of arrest, detention or sentence made on
political or security grounds, each side may examine the case on its merits”39. Panjiksistan
argues that this provision applies to Mr. Jadhav and that the Court therefore lacks prima
facie jurisdiction under Article I of the Optional Protocol40. The contention made by
Pakistan in the Kulbhushan Jadhav apply to the present context as the agreement made by
Indus and Pakistan clearly supplements and amplifies the Vienna Convention of Consular
Relations and hence the court in Indus can try and examine the accused on merits and it is
for the court of Indus to decide that whether consular access should be given to the accused
or not. Disputes arising out of the interpretation or application of the Convention shall lie
36
Vienna Convention on Consular Relations art.73(1), April 22, 1963, 500 U.N.T.S.93.
37
Vienna Convention on Consular Relations, art.73(2), April 22, 1963, 500 U.N.T.S.93.
38
Jadhav (Ind. v. Pak.), Provisional Measures, 2017, I.C.J. Reports, ¶25 (May18).
39
Supra note 35.
40
Supra note 38.
21
COMPETITION, 2018
within the compulsory jurisdiction of the International Court of Justice41.So the denial of
the consular access would not contravene the Vienna Convention on Consular Relations as
the case can be determined on merit and hence the compulsory prima facie jurisdiction of
the International Court of Justice would not be triggered.
NATURE?
In the instant case the arrest and detention of the accused is as per the procedure and doesn’t
vitiate subsequent proceedings. The submission in this three folded. [4.1] The arrest of the
accused is legal in nature [4.2] The detention was for the operational intelligence [4.3] The
subsequent proceeding didn’t vitiate by the arrest in this case.
[4.1] The arrest of the accused is legal in Nature
The entire procedure adopted by the state of Indus to destroy the launch pads, the hideout
of terrorist was justified under article 51 of UN Charter which states the right to private
defence when an armed attack occurs against a Member of united nation, apart from that
the arrest was also justified as per the law in Indus.
One Colonel, five Majors, two Captains, one Subedar, two Naib Subedars, three Havildars,
one Lance Naik and four Paratroppers of the 4th and 9th Battalions of the Para Regiment
took part in surgical strike. In surgical strike, army was successful in destroying terrorist
hide outs and launch pads and caught one terrorist alive namely Masab Khan from
Panjiksistan occupied Pammu and Pashmir for getting operational intelligence and also to
prove to the world that Panjiksistan was sponsoring terrorism from the soil under its
control42.
The arrest in this case is made under the provision of Armed Forces (Pammu & Pashmir)
Special Powers Act43 of section 4(c) that provide special powers to armed forces to arrest,
without warrant, any person who has committed a cognizable offence or against whom a
41
Optional Protocol concerning the Compulsory Settlement of Disputes art.1, April 24,1963, 596 UNTS 487.
42
43
1990 No. 21 of 1990.
22
COMPETITION, 2018
reasonable suspicion exists that he has committed or is about to commit a cognizable

offence. There are two requirements to further justify this. Firstly, it is done by any
commissioned officer, warrant officer, non-commissioned officer or any other person of
equivalent rank in the armed forces as from the facts, we know that during the arrest there
are one Colonel, five Majors and two Captain and they all belongs to the commissioned
officer.
Secondly, it must be in the disturbed areas as define in section 2(b) of the above mentioned
act, one of the most disturbed areas is Poonch district in the Pammu and pashmir which
has a few percentage of parts in the Panjiksistan occupied Pammu and Pashmir which is
also an integral part of Indus, as we know that both houses of the Indus Parliament
unanimously adopted a resolution on February 22, 1994, emphasizing that Pammu and
Pashmir was an integral part of Indus, and that Panjiksistan must vacate parts of the State
under its occupation. Apart from that the applicability of the Armed Forces (Pammu &
Pashmir) Special Powers Act extends to the whole of the State of Pammu and Pashmir.
Furthermore, in this case the doctrine of territorial nexus will also be applied which means
that a state law is not invalid as long as there exists a sufficient nexus between or connection
between the state and the subject matter of the law. In other words, although the object to
which the law applies may not physically be located within the territorial limits of the state
yet the state law will be valid if there exists a connection or nexus between the state and
that object44. The most important consideration for invoking the doctrine of nexus is that
the connection between the state and the subject-matter of the law must be real and not
illusory45. In this the case the objective of the law is to maintain internal peace and security
in the disturbed areas so the law will also apply to affected area to achieve its object of
internal peace and there is a direct nexus between both of them.
[4.1.1] The arrest was bonafide in Nature
They caught one terrorist alive namely Masab Khan from Panjiksistan occupied Pammu
and Pashmir for getting operational intelligence and also to prove to the world that
44
Nautam Praksah DGSVC v. K.K. Thakur, (2006) 5 SCC 330: AIR 2006 SC 2075.
45
State of A.P. v. NTPC Ltd., (2002) 5 SCC 203: AIR 2002 SC 1895.
23
COMPETITION, 2018
Panjiksistan was sponsoring terrorism from the soil under its control46. From the fact it is
clear that the arrest was done only for the operational intelligence and also to prove to the
world the Panjiksistan who always deny of the allegations of state sponsored terrorism is
doing the same. Apart from that the armed officers are protected in respect of anything
done or purported to be done in exercise of the powers conferred by this Act as mention in
section 7 of the Armed forces (Pammu & Pashmir) Special Powers Act.
[4.2] The detention was for the operational intelligence
Operational intelligence is the intelligence that is required for planning and conducting
campaign and major operation to accomplish strategic objectives within theaters or
operational areas. From the fact it is clear that there are two major attack done by the
terrorists in first they killed more than 180 people and 410 injured and in second they
entered military units and killed soldiers. This matter is of grave concern as we know there
are lots of terrorist launch pads and hideouts in Panjiksistan occupied pammu and pashmir
and they are actively working and trying to enter in our country, the detention was only for
the operational intelligence, so that the army of Indus can find an approach to deal with
these terrorist in near future as there might be chance that they are planning for another
attack on Indus, so the army was just gathering some vital information to maintain the
internal peace and security. Furthermore, section 6 of Armed forces (Pammu & Pashmir)
special powers act give power to arrest and the arrested person must need to handover to
the police station with least possible delay, as the least possible delay must interpreted as
per the facts and circumstances of each case.
[4.3] The subsequent proceeding didn’t vitiate by the arrest in this case
Arrest illegal doesn’t vitiate the trial, if an arrest is not justified under the law this by itself
cannot vitiate the trial47. No doubt if arrest is not justified in law at the time of the arrest
nothing untoward happens and the person arrested is brought to the custody of the court
46
Page 3 ¶.2 Moot Proposition
47
Supra 12.
24
COMPETITION, 2018
the trial of the accused will not vitiate on this ground48. Even in this case the entire
proceeding is not vitiated even if the arrest is not justified. That’s why the contention of
the accused that the arrest in this case is vitiated subsequent proceeding has no values in
the eyes of law.
[4.3.1] The judicial confession is also admissible in this case
In this case the confession by the accused is voluntarily before the magistrate of the
competent jurisdiction and as per the procedure established in Indus mentioned in section
164 of Code of Criminal Procedure and admissible in the court of law. Section 164 is a
protective measure, as it itself contains warning to the accused by the magistrate before
making any confessional statement. The provision of section 164 of Cr.P.C. do not violate
the provisions of the constitution49. Apart from that Even if the investigation becomes
illegal as alleged by the prosecution, the statement recorded during investigation is not
illegal50 and hence admissible in the court.
It is humbly submitted before this Hon’ble court that the accused doesn’t have any right to
bail as the statutory period of 90 days as mention in the code of criminal procedure is not
completed. The submission in this is three folded [5.1] Computation of the period start
from the day of remand and not from the arrest [5.2] Section 167 of Cr.P.C. will apply to
the arrest by police only [5.3] Special enactments will apply in this case.
[5.1] Computation of the period start from the day of remand and not from the arrest
The supreme court held, that the period of 90 days or 60 days prescribed in sub-clauses (I)
and (II) of proviso (a) of S. 167(2) should be computed from the date of remand of the
accused and not from the date of his arrest51. The period of 90 days mentioned in the
48
Bhagan v. State, AIR 1955 Pepsu 33; State v. Ramchandra, AIR 1955 AII 438; Mulla Singh v. State, AIR
1968 AII 132: 1968 Cri LJ 435; Munnilal v. State, 1970 ALJ 762
49
Dev Dass v. State, 1996 Cr LJ 1441.
50
Bhanu Prasad v. State of Gujarat, 1968 Cri LJ 1505: AIR 1968 SC 1323: 1968 SC 1026:1969 (1) SCR 22.
51
Rajeev Chaudhary v. State (NCT) of Delhi, 2001 Cri LJ 2941: (2001) 5 SCC 34: 2001 SCC (Cri) 819
25
COMPETITION, 2018
proviso has to be computed from the time when the magistrate authorizes the detention for
the first time, i.e. from the date of the first remand of the accused to custody52.
[5.1.1] The Air Force Authority Case
From the combined reading of the provisions of the code, it is manifest that section 167
envisages arrest and detention of any person in police custody, preceding his production
before a judicial magistrate. Besides proviso (a) to section 167 of the code speaks of the
detention of an accused person by the authority of a magistrate. For the foregoing reasons
period of custody under the air force authority is not included in “total period of 90 days”.53
The total period of 90 days under clause (I) has to be calculated only from the date of
remand and not from the date of arrest.54
The accused Masab Khan was initially in the custody of army for 30 days and then he was
presented to the magistrate of the competent jurisdiction as per the procedure for
confessional statement. Furthermore, the accused was in custody of ATS only for 70 days
which means that only 70 days is completed from the stipulated statutory period of 90 days,
as we know that army cannot file a charge-sheet as per the law in Indus, so, as per 167(2)
the accused has no right to be enlarged on bail.
Furthermore, Where the charge-sheet has been filed within the stipulated period, the bail
application under 167 (2) becomes incompetent55.
[5.2] Section 167 of Cr.P.C. will apply to the arrest by police only
In the landmark case of, Elumalai v. State of Tamil Nadu56, the court stated that section
167(2) of the code would apply to arrests made under S. 41(1) and in exceptional
circumstances to arrests made under S.151(1).
52
Dorai v. State of Karnataka, 1994 Cri LJ 2987: 1994 (3) Crimes 697 (Kant.)
53
S.K. Nair v. State of Punjab, 1984 Cr LJ 1090
54
Shivanna v. State, 1992 Cr LJ 2287 (2282) (Kant): ILR 1992 Kar 2610; Chaganti Satyanarayana v. State
of A.P., AIR 1986 SC 2130: (1986) 2 SCC 141.
55
Anand Singh v. State of Rajasthan, 1999 Cri LJ 842
56
1983 LW (Crl) 121
26
COMPETITION, 2018
As we know that section 41(1) of the code clearly states about the grounds when police
arrests and section 151(1) of the code also empower the police to arrest. By the above
statement it can be concluded that arrest in this given case doesn’t come under the purview
of section 167(2) of Code of Criminal Procedure.
[5.3] Special enactments laws will apply in this case
Section 167 applies only to investigation by the police under chapter XI and doesn’t apply
to proceedings under special enactments. The power to remand under section 167, CrPC is
available only in the case of investigation by the police under chapter XI of the code57.
The reason is that it is very likely that by following such illegal practices, in a given grave
and serious case where the charge-sheet gets belated and as a result of which the accused,
sometimes even the hard core accused, may get benefit of default bail and get released even
if that was filed late by few day only.58
The accused was charged for various offences under Indus Penal Code, 1860, Arms Act,
1959, Unlawful Activities (Prevention) Act, 1967, Passport (Entry into Indus) Act, 1920,
Prevention of Damage to Public Property Act, 1984 and Railways Act, 198959.
[5.3.1] Application of certain provisions of the Code Unlawful activities (Prevention)

Act and Prevention of Damage to Public Property Act, 1984
“Provided further that if it is not possible to complete the investigation within the said
period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor
indicating the progress of the investigation and the specific reasons for the detention of the
accused beyond the said period of ninety days, extend the said period up to one hundred
and eighty days60.
As the accused Masab khan was charged under unlawful activities (Prevention) act, 1967
so, the special enactment will prevail in this case which enable the option of extension of
57
Dalam Chand Baid v. Union of India 1982 Cri LJ 747 (Del).
58
Sardarsingh Nagsingh Rajput v. State of Gujarat, 1993 Cri LJ 3473: 1993 Cr LR (Mah and Guj) 328 (Guj)
59
Page 4 ¶.3 Moot Proposition
60
The Unlawful Activities (Prevention) Act, No.31 of 1972, § 43D(b) (1967).
27
COMPETITION, 2018
detention beyond the statutory period of 90 days and it can be extended upto 180 days, by
which in the present case it is implied that the accused doesn’t have to be enlarged on Bail.
Furthermore, in the case of Prevention of Damage to Public Property Act, 1984 there is a
special provision regarding bail which will also apply in this case as mentioned in the
section 5 of the act.

FOR HIS DEFENCE?
It is humbly and respectfully contended before this Hon’ble court that the accused doesn’t
have any right to be defended by counsel of his choice that is counsel from Panjiksistan.
The contention in this is two folded [6.1] Violation of Advocate Act, 1961 [6.2]
Applicability of Vienna Convention.
[6.1] Violation of Advocate Act, 1961
As per the preamble of the advocate Act, 1961, it is an act relating to legal practitioners
and to provide for the constitution of the Bar Councils and an All-Indus Bar. As the accused
in the instant case requested a counsel from Panjiksistan but this cannot be done as
providing him the counsel from Panjiksistan will violate the Indus Provision of Advocate
act, 1961.
As the request was done by referring Article 22 which states that the person has the right
to defended by a legal practitioner of his choice. As according to the Advocate Act, the
word Legal Practitioner means an advocate [or vakil] or any High Court, a pleader, mukhtar
or revenue agent61 and Advocate means an advocate entered in any roll under the
provisions of this Act62, Furthermore, “roll” means a roll of advocates prepared and
maintained under this Act63. The qualifications for enrolment as an advocate amongst other
things, are that the person at the time of enrolment should be a qualified graduate in law
61
The Advocate Act, No. 25 of 1961, § 2(I) (1961).
62
The Advocate Act, No. 25 of 1961, § 2(a) (1961).
63
The Advocate Act, No. 25 0f 1961, § 2(k) (1961).
28
COMPETITION, 2018
from a university recognized by the Bar Council of Indus64. Under the above mentioned
act there is a list of advocates who are allowed to practice and apart from that no other
person is allowed. As the preamble clearly states that amend and consolidate the law
relating to legal practitioners and apart from that no other laws prevail. This means that
providing any Panjiksistan counsel will violate the provision. Furthermore, nowhere it is
mentioned in the article 22 that a foreign counsel can come under this as it is only mention
legal practitioner of his choice. So, in the instant case accused request of Panjiksistan
Counsel will not be taken into consideration.
[6.2] Applicability of Vienna Convention
The article 36 of Vienna convention did not apply on terrorists which harm the victim
country in large way and the terrorist act which harm the security of the victim country. So
here on Indus case, rebutting on this issue that the accused should provide the counsel of
Panjiksistan will no more be entertained as it was not even violating Vienna convention by
not giving consular access to Masab khan as such access and counsel would not be
available to an individual who is arrest for harming the security of country and terrorist
attack after huge master plan. As Vienna convention on consular relations applied only to
legitimate visitors and did not cover clandestine operations and not for the accused of the
case in which arrest or detention or sentence made on political or security ground65.
As if we talk about Kulbhushan Jadhav case then in that case Panjiksistan has referred to
the bilateral consular access agreement of 2008, which says that in case of arrest, detention,
or sentence made on political or security grounds, each side may examine the case on the
merits66. The agreement was signed in Islamabad by former High Commissioner of
Panjiksistan to India Shahid Malik and his India counterpart, Satyabrata Pal, on May 21,
2008. Therefore, in Masab Khan case also the accused can’t claim for counsel form
Panjiksistan.
64
The Advocate Act, No. 25 of 1961, § 7(1) (1961).
65
Agreement on consular access between the Government of the Islamic Republic of Pakistan and the
Government of the Republic of India. Islamabad, 21 May 2008, 54471.
66
Jadhav (Ind. v. Pak.), Provisional Measures, 2017, I.C.J. Reports, ¶25 (May18).
29
COMPETITION, 2018
Article 22(1) of the Constitution of India, empowers a person in detention to consult or

choose a legal practitioner of his choice but it is nowhere mention that the above provision
allows the person to choose the counsel of other nation. The expression “of his choice”
does not mean the accused can pick and choose a lawyer; it only suggests that the lawyer
representing the accused must be acceptable to him or her.
TRIAL?
It is humbly submitted before the Hon’ble court that in the instant case there is no adverse
publicity by the media as the media is working under his power and doesn’t affect the
principle of fair trial. The submission in this is two folded [7.1] Media is working as per
the mandate and no adverse publicity by the media in this case [7.2] Principle of Fair Trial
is not Violated.
[7.1] Media is working as per the mandate and no adverse publicity by the media in
this case.
In Printers (Mysore) Ltd. v. CTO67, the Supreme Court has reiterated that though freedom
of the press is not expressly guaranteed as a fundamental right, it is implicit in the freedom
of speech and expression. Freedom of the press has always been a cherished right in all
democratic countries and the press has rightly been described as the fourth chamber of
democracy. The freedom of press is regarded as “the mother of all liberties in a democratic
society”68. A responsible press is a handmaiden of effective judicial administration. Media
has wide ranging roles and plays a vital role in shaping the opinion of the society.
The Courts have time and again emphasized that the media and press should not be
unnecessarily restricted in their speech as the same may amount to curtailment of
expression of the ideas and free discussion in the public on the basis of which the
democratic country functions. The Courts should thus refrain from making any prior
restraints on the publications in order to curtail such freedom. It therefore received a
67
(1994) 2 SCC 434
68
In re Harijai Singh, AIR 1997 SC 73
30
COMPETITION, 2018
generous support from all those who believe in the free flow of the information and
participation of the people in the administration; it is the primary duty of all national courts
to uphold this freedom and invalidate all laws or administrative actions which interfere
with this freedom, are contrary to the constitutional mandate.69 As in the instant case there
is no such incident to justify that there is adverse publicity by the media, as the media has
the freedom implicit under fundamental right which cannot be restricted and the contention
of the petitioner that the accused did not expect fair trial in Indus because of the media
cannot be taken into consideration.
[7.2] Principle of Fair Trial is not Violated
There are various facets to the right to a fair trial. The Hon’ble Supreme Court in the case
of Zahira Habibullah Sheikh & Anr vs State of Gujarat70 has held that, “the principle of
fair trial now informs and energizes many areas of the law. It is reflected in numerous rules
and practices of fair trial obviously would mean a trial before an impartial Judge, a fair
prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or
prejudice for or against the accused, the witnesses, or the cause which is being tried is
eliminated.” The concept of fair trial entails familiar triangulation of interests of the
accused, the victim and the society and it is the community that acts through the State and
prosecuting agencies. Most of these safeguards to ensure a fair trial are contained under the
Code of Criminal Procedure, 1973 which contains and defines the procedure which has to
be followed in criminal cases. But in this case no such provision is violated as the trial is
fair as the contention of the accused that he didn’t expect fair trial is vague in nature.
Also, in this case the accused confessed before the magistrate of competent jurisdiction
that he was the mastermind the terrorist attack in Indus on 26 November 2015. So, in this
case there cannot be any media trial as the accused had already accepted the guilt.
69
Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641
70
2004 4 SCC 158
31
COMPETITION, 2018
PRAYER
Wherefore in the lights of the issues raised, arguments advanced and authorities cited, it is
humbly prayed that this Honorable Court may be pleased to adjudge and declare that:
I. The special leave petition filed by the accused is not maintainable.

II. The court in Indus have the jurisdiction to try Panjiksistan national apprehended
from its territory.
III. Indus has not contravened vienna convention on consular relations.
IV. The nature of arrest and detention by Indus army is legal in nature.
V. The accused has no right to be enlarged on Bail.
VI. The accused is not entitled to legal practitioner from Panjiksistan.
VII. The media is not affecting the principle of fair trial by adverse publicity.
AND/OR
Pass any other writ/order/direction which the court may deem fit in the interest of equity,
justice, expediency and good conscience in favour of the Respondent. All of which is
most respectfully affirmed and submitted.
Sd /-
COUNSELS FOR THE RESPONDENT
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Tc-Amcc 05: 2Nd Amity University Madhya Pradesh National Moot Court Competition, 2018

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2nd AMITY UNIVERSITY MADHYA PRADESH NATIONAL MOOT COURT

2nd AMITY UNIVERSITY MADHYA PRADESH NATIONAL MOOT COURT

THE HON’BLE SUPREME COURT OF INDUS

SLP No._ of 2018

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDUS

MASAB KHAN…………….……………………………………………. PETITIONER

IN THE MATTER CONCERNING JURISDICTION OF INDUS COURT,

MEMORIAL ON BEHALF OF RESPONDENT

Index of Authorities………. ..….………………………………………………………......4

[1.1] No exceptional and Special circumstances exist in this case ……………………….13

[1.2] Restriction in the Appellate Jurisdiction of Article 136……………………………..14

[1.3] Alternative remedy was not exhausted in this case………………………………….14

[3.1] Rights are subject to certain restriction ………………………………………..…..20

[3.2] Kulbhushan Jadhav Case ………………………………………………………… .21

[4.1] The arrest of the accused is legal in nature….……………………………………….22

[4.2] The detention was for the operational intelligence……………………………...….24

[5] The accused has no right to be released on Bail………………………………….…. 25

[5.3] Special enactments will apply in this case….…………………………………...….27

[6.1] Violation of Advocate Act, 1961……………………………………………………28

[6.2] Applicability of Vienna Convention ..……………………………………………...29

[7.2] Principle of Fair Trial is not Violated………………………..…………………….30

LIST OF CASES [INDIAN]

No. NAME OF THE CASE CITATION(s) PAGE

3. Asstt. Collector of Central Excise v. Jainson Hosiery AIR 1979 SC 1889 15

20. Mohammad Khalil Chisti v. State of Rajasthan 2013 Cr LJ 637 (649) 13

1. Congo v. Belgium ICJ Reports, 2002, ¶3,36 18

1. The Constitution of India, 1950

INTERNATIONAL TREATIES, CONVENTIONS, AGREEMENT

1. Agreement on Consular Access between the Government of the Islamic Republic

Special leave to appeal by the Supreme Court,

ISSUE 1- WHETHER THE SPECIAL LEAVE PETITION FILED BY THE ACCUSED IS

ISSUE 2- WHETHER THE COURT IN INDUS HAVE THE JURISDICTION TO TRY

ISSUE 3- WHETHER NOT GIVING CONSULAR ACCESS TO THE ACCUSED WOULD

ISSUE 5- WHETHER THE ACCUSED HAD A RIGHT TO BE ENLARGED ON BAIL AS THE

ISSUE 6- WHETHER THE ACCUSED IS ENTITLED TO GET COUNSEL FROM PANJIKSISTAN

ISSUE 1- WHETHER THE SPECIAL LEAVE PETITION FILED BY THE ACCUSED IS

NATIONAL APPREHENDED FROM ITS TERRITORY?

ISSUE 3- WHETHER NOT GIVING CONSULAR ACCESS TO THE ACCUSED WOULD

CONTRAVENE THE VIENNA CONVENTION ON CONSULAR RELATIONS?

ISSUE 5- WHETHER THE ACCUSED HAD A RIGHT TO BE ENLARGED ON BAIL AS THE

CHARGE-SHEET WAS NOT FILED WITHIN THE STATUTORY PERIOD OF 90 DAYS?

ISSUE 6- WHETHER THE ACCUSED IS ENTITLED TO GET COUNSEL FROM PANJIKSISTAN

ISSUE 1- WHETHER THE SPECIAL LEAVE PETITION FILED BY THE

[1.1] No exceptional or special circumstances exist in this Case

[1.2] Restriction in the appellate jurisdiction of Article 136

[1.3] Alternative remedy was not exhausted in this case

NATIONAL APPREHENDED FROM ITS TERRITORY?

International law permits states to exercise jurisdiction (whether by way of legislation,

(I) No criminal proceedings whatsoever shall be instituted or continued against the

(II) In accordance with well-recognized principles of international law, foreign sovereigns

ISSUE 3- WHETHER NOT GIVING CONSULAR ACCESS TO THE ACCUSED WOULD

CONTRAVENE THE VIENNA CONVENTION ON CONSULAR RELATIONS?

[3.1] Rights are subject to certain restriction

[3.2] Kulbhushan Jadhav Case

[4.1] The arrest of the accused is legal in Nature

reasonable suspicion exists that he has committed or is about to commit a cognizable

[4.1.1] The arrest was bonafide in Nature

[4.2] The detention was for the operational intelligence

[4.3.1] The judicial confession is also admissible in this case

ISSUE 5- WHETHER THE ACCUSED HAD A RIGHT TO BE ENLARGED ON BAIL AS THE

CHARGE-SHEET WAS NOT FILED WITHIN THE STATUTORY PERIOD OF 90 DAYS?

[5.1.1] The Air Force Authority Case

[5.3] Special enactments laws will apply in this case