DISCLAIMER:

THIS IS A HYPOTHETICAL PROPOSITION AND NEITHER INTENDS NOR

ATTEMPTS TO RESEMBLE ANY INCIDENT OR ANY PERSON,
INDIVIDUAL OR ENTITY, EITHER LIVING OR DEAD. THE CONTENTS OF
THIS DOCUMENT SHALL NOT BE INTERPRETED TO DISSEMINATE ANY
INFORMATION FOR PURPOSES OTHER THAN THE COMPETITON, IN A
MANNER THAT CASTS DISREPUTE OR DEFAMATION TO ANY
COUNTRY, AUTHORITY, PERSON, BODY OR INDIVIDUAL. ALL
REFERENCES IN THE PROBLEM ARE FICTITIOUS AND DO NOT INTEND
TO OR ATTEMPT TO HURT THE IDENTITTY, FEELINGS OF ANY
INDIVIDUAL, ENTITY, STATE, COMMUNITY OR RELIGION. ANY
RESEMBLANCE TO ANY INCIDENT OR PERSON IS NOT INTENDED BUT
MERELY A COINCIDENCE.

MOOT PROPOSITION

1. The Republic of Indica is a country that follows the principles of

a constitutional democracy while very vehemently regarding the
doctrine of separation of power as a part of its basic structure
and thus calls for a division of power between the judiciary,
executive and legislature. The Republic of Indica holds the law
of land as the highest authority and the principles of rule of law
are well enshrined in its Constitution which is considered one of
the most sacred and supreme law to persist within its territory.
Anything that goes against and beyond the Constitution’s
purview is considered illegal.

2. Vivek Das, an allegedly notorious figure, was a rather unknown

figure outside of Kaulpur, Unkar Pradesh and neighbouring
areas, where he had something of a reputation for being

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 pedestaled above the law. He had somewhere around 60
documented criminal cases against him. Vivek Das was linked
to several crimes including the murder of a college manager in
2000 and a cable operator in 2004. In 2001, Vivek was charged
with shooting Sandesh Shakula, a state minister inside a police
station in 2000 for which he was pronounced not guilty by the
trial court owing to “lack of evidence” and “absence of
eyewitness”, after allegedly each of more than a dozen police
personnel, who were present at the time of crime, turned
hostile. It was the alleged murder of Sandesh Shakula that
propelled Vivek’s name to the political frontlines.

3. On the night of 2nd August 2020, a team of about 20 policemen

had gone to the residing village of Vivek Das from Chandapur
police station area to arrest Vivek Das. Thereafter, the team was
attacked by henchmen of Vivek Das including from rooftops. At
least seven security personnel were injured in the attack along
with 10 Unkar Pradesh cops, including a DSP and three SI were
killed during a raid to arrest Vivek Das in Bishaal village, near
Kaulpur city.

4. On the same day, Paresh Pancham Das, Vivek’s uncle and

Ashish Das, Vivek’s cousin were also shot down in what is
believed to be an encounter while the investigation and search
was ongoing. A service gun and a country-made gun were
discovered from their personal belongings. It is also alleged that
the two attackers had snatched an AK-47, an INSAS rifle and
two guns from the police team. In the meantime, Vivek Das is
found to be absconding. On 4th August 2020, it is discovered

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 that Vivek’s house in Bishaal village was demolished by police.
The police subsequently lodged a FIR against 25 people, mostly
residents of Bishaal village, and 50-60 unidentified people in
connection with the killing of the eight police personnel.
Meanwhile, Chandapur’s SO Vishal Trivedi was suspended
under the perception that he tipped-off Vivek Das regarding the
raid in which those eight officers were murdered.

5. Darshan Aggarwal, a close aide to Vivek Das as he was always

seen to accompany Vivek Das and resided with Vivek Das at his
now demolished house. He was also named as an accused in
the firing incident on the policemen and was absconding. Later,
he was found by the police and eventually arrested. Upon his
arrest, Darshan confessed to being aware of the fact that Vivek
was tipped-off by someone in the police department, informing
him about his impending arrest, and after that Vivek called his
men for a face-to-face bloodbath with the police.

6. A letter by officer Diwakar Mahajan, who was killed in the

shootout on August 3rd, 2020 resurfaced. It was addressed to
SP Angad Desai in March and it detailed the extent of Vivek’s
connections with the police and political authorities. The letter
pointed out how Vivek Das had been permitted to be free in
spite of “more than 60 criminal cases pending against him in
Kaulpur and neighbouring districts”. Deceased Mahajan also
sought after to draw Desai’s attention to the unholy nexus
between one of his sub-inspectors, the now-suspended Vishal
Trivedi and Vivek Das. The letter was later verified by the
concerned police department and after this, SP Angad Desai

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 was notified about his transfer on August 7th, 2020. On the
same day, Vivek Das is allegedly spotted in Fitoorbad,
Husiyana.

7. In operations across Kaulpur and Fitoorbad, several of Vivek’s

aides were arrested including six men and two women who were
his relatives which included Vivek’s brother in law Sohail
Nadeem along with his son were arrested and picked up after
which his son was detained by the police. Other than them,
Vivek’s neighbour Suresh Shankar and house-help Rani were
arrested. Rani’s husband Kailash, a key associate of Vivek was
arrested at Angadbad area on 5th August 2020. Meanwhile
Arun Kumar, Vivek’s bodyguard, who was allegedly part of the
group that was involved in a shootout August 3rd, 2020, was
killed by the policemen in Hukumpur district, near Kaulpur,
early on 8th August, 2020. SHO Vasu Tanvar was arrested on
the charges of leaking information and allegedly forewarning
Vivek Das about the raid.

8. On 9th August 2020, almost a week after the shootout in

Kaulpur, Vivek is arrested on the premises of the Mahnatkash
temple in Usherpur, Markhan Pradesh where according to the
police, he had bought a Rs 400 ticket for VIP darshan at the
temple and while he was leaving, the security guards asked him
his name, and an argument ensued where he was overpowered
by guards on the temple premises. Ultimately, Vivek disclosed
his identity and was taken to the police station where senior
officers took over the matter. He reportedly drove for about six
days since the shootout from Kaulpur, Unkar Pradesh, to

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 Fitoorbad, Husiyana to Kora, Rashusthan and finally went to
Usherpur. According to reports, Vivek Das dramatically
announced his presence at the temple, saying “I am Vivek Das,
the one from Kaulpur”. Hours after Vivek’s arrest, his wife Rinki
Das who had allegedly linked her mobile phone to a CCTV
camera placed in their now-demolished house at Bishaal village
and kept a close look on the activities there even after her
absence, was also arrested.

9. On August 10th, 2020 a vehicle carrying Vivek Das along with

the policemen overturned on the wet highway, after which Vivek
tried to escape the cops. According to the police, Vivek tried to
escape by snatching a gun from them but was shot down dead
like his fellow accomplice who previously had also tried to
escape. According to the SPECIAL POLICE TEAM (SPT) who
were responsible for Vivek’s escorting, further explained that
while taking a turn to avoid herds of cattle, the car flipped. In
the time span of almost one week, Vivek went from being a
dreaded yet unknown, obscure neighbourhood criminal to one
of the most discussed individuals in the nation. From
suspension of police officers, to Vivek's sensational arrest, to
eventually his encounter, the case was firmly trailed by national
media with an extraordinary intrigue. The stakes were especially
high on the grounds that Vivek was accused of being a
significant part of the existing political nexus of the concerned
state. Some on Twitter even conjectured that Vivek would be
shot down in an "encounter" so as to cover the tracks of those
whom he had close binds with.

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 10. The country after this encounter, is divided into two state of
minds. On one hand, it is believed that encounters and such
extra judicial killings lead to present itself as a black spot on
the face of democracy and hinders with a citizen’s right to have
free and fair trial, completely disregarding and disrespecting the
position of the rule of law in the country. On the other hand,
according to some, the policemen are often right to justify this
method by claiming that there are some dreaded criminals
against whom no one would dare to give evidence which is
abundantly clear in the case of Vivek’s past charges, and so
the only way to deal with them is through encounters.

11. The National Human Rights Commission (NHRC) in the past

sent notice to the Unkar Pradesh’s Government in 2017,
observing that the “police personnel in the State are feeling free,
misusing their power in the light of an undeclared endorsement
given by the higher ups. They are using their privileges to settle
scores with the people.” It also said encounter deaths which
have happened before majorly while escorting criminals to the
state governments stating that the fundamental premise to the
rule of law is that every human being, including the worst
criminal, is entitled to basic human rights and due process.
Encounter killings generally take place with the prior consent or
in full knowledge of the top authority. However, the NHRC has
also laid down two situations when police can take away
somebody's life, which is otherwise protected by the
fundamental right to life and personal liberty as guaranteed by
the Constitution: First, if the death is caused by the right to
private defence when the police person or personnel are
attacked by the suspect(s), but it does come with restrictions

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 under the IPC. Second, if the death is caused by use of force
that was necessary to arrest a person accused of an offence
punishable with death or imprisonment for life, which also
comes with restrictions mentioned under the IPC.

12. Thereby, various members of the media, press and the public
came together and filed Writ Petition No. XYZ/2020 before the
Hon’ble Supreme Court under Article 32 of the Constitution of
Indica contending that there is every possibility of the concerned
police department resorting to kill Vivek Das in a fake encounter
during his transit. The writ petitioners further asseverated
therein that the action was a flagrant violation of the
fundamental rights of an accused under the Constitution along
with a violation of Vivek’s legal rights under the Criminal law
namely the presumption of innocence, a right to be taken before
a magistrate without delay, a right to free, fair and speedy trial.
However, the opposition to this petition states that alleged
criminals like Vivek Das have gained an expertise in misusing the
guidelines and provisions mandated by the court in their favour,
eliminating the scope for having a peaceful and disciplined
society and thus, in certain situations it is important for the
police to take matters into their own hands in order to render
their services and loyalty to their nation.

13. Taking into account the gravity of the situation, Hon’ble Supreme
Court of Indica was pleased to admit the writ petition and issued
notice.

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 STATEMENT OF ISSUES

1. Whether the actions and omissions of the Police of Unkar

Pradesh resulted in the violation of Article 21 of Constitution of
Indica in as much as Vivek Das was killed and his life was
taken away without the due procedure established by law.

2. Whether the Police of Unkar Pradesh was justified in killing the

dreaded criminal who had brazenly killed scores of Policemen
along with his henchmen and the action of Police is justified in
terms of self-defence (Chapter IV: General Exceptions, Section
96-106) of Indica Penal Code. Also, whether the police have
followed the principle as provided under Cr.P.C i.e. to produce
the accused before the concerned court and various other
provisions of Cr.P.C.

Nota Bene:

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 1. Only the laws of Republic of Indica are pari materia to the laws
of India and no such fact is pari materia to any country.

2. This Moot Proposition is purely a work of fiction and

resemblance to any such incidence shall be purely co-
incidental.

3. This Moot Problem is purely intended for the Moot Court

Competition and educational purpose amongst law students.

4. The participants are required to prepare their submissions from

each side of the case. They are not allowed to add a new issue,
however, participants are free to add sub issues pertaining to
the issues mentioned.

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