THE K.

K LUTHRA MEMORIAL MOOT COURT, 2021

MH120

THE K.K LUTHRA MEMORIAL MOOT COURT, 2021

Before

THE SUPREME COURT THE OZALA

PETITION NUMBER _______ / 2021

FILED UNDER ARTICLE 32 OF

THE CONSTITUTION OF OZALA

IN THE CASE CONCERNING THE DISMISSAL OF MS. QUANTISA’S BAIL PETITION AND
CONSTITUTIONAL VALIDITY OF THE ‘TWIN CONDITIONS’ OF BAIL

AND

IN THE MATTER BETWEEN:

MS. QUANTISA [PETITIONER]

versus

UNION OF OZALA [1]

STATE OF ASPAR [2] [RESPONDENT]

MEMORIAL for RESPONDENT

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WRITTEN PLEADINGS

ISSUE 1 : Whether the additional conditions for grant of bail under Section 439A of the
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?

1.1 Whether the ‘twin conditions’ of bail are in contravention with the jurisprudential
aspect of bail?
The counsel for the defendant humbly submits and argues that the ‘twin conditions’ of bail
are not in contravention with the jurisprudential aspect of bail.
[1] The offence committed by the petitioner is of the nature of a bailable or a non-bailable
offence as provided by the Ozalan Code of Criminal Procedure, 19731, and so in the cases
of bailable or non-bailable offences the court has the right to either refuse quanta’s the of
bail for any offence or grant bail , provided that proof of prima facie case and sufficiency
of evidence in necessary the Court has merely to satisfy as to whether the case against the
accused is genuine and whether there is prima facie evidence to support the charge. Further
it has been provided under Sec 188 of the Indian Penal Code,1860(which is the same as the
Ozalan Penal Code)2, a bailable offence can be made a non-bailable offence by the state
government under Sec 10(1) of the Criminal Law Amendment Act,19323.

[2] In the case of a bailable offence the person has a “right to bail” and can demand said right
from the court. But the court has to look into the aspects of the further commission of the
offence by the person if left on bail and the grievousness of the offence, in this case the
offence committed by the defendant was as grave as the word can get and granting bail to
the defendant would put the society in danger. As the word “Non-Bailable” denotes, there

1
¶6 Page 7, STATEMENT OF FACTS, THE K.K LUTHRA MEMORIAL MOOT COURT, 2021 Ozalan Code
of Criminal Procedure, 1973 and the Code of Criminal Procedure, 1973 in India are in pari materia, except for
Section 439A.
2
¶5 Page 7, STATEMENT OF FACTS, THE K.K LUTHRA MEMORIAL MOOT COURT, 2021 Ozalan Penal
Code, 1860 and the Indian Penal Code, 1860 are in pari materia.

3
Ibid.
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is no question of claiming a right to bail by the accused. Accused in the case of a non-
bailable offence shall not be released on bail as a rule like in bailable offence.

[3] The Hon’ble Supreme Court in the matter of State of Maharashtra vs. Sitaram Popat
Vetal4 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.

[4] Courts must deny bail only under three conditions- One, the person charged with the crime
is likely to flee. Two, the accused is likely to tamper with evidence or influence witnesses.
Three, the person is likely to repeat the same crime if granted bail. These grounds should
be considered by courts by evaluating the factors as provided in the S.P Vetal case5.

[5] The state is charged with the responsibility of protecting the rights of its people, and so the
court in the cases of non-bailable offences is to give primacy to the maintenance of “social
order”, and if the court is satisfied that granting bail to a person would disrupt “social order”
then it has absolute authority to reject the plea for bail. Since time immemorial the supreme
function of the state has been the protection of its people and so the court cannot give
primacy to individual interests on the brink of compromising “social order”. In this case
the defendant had, interacted with a considerable number of people, though there was a
suspicion of her having been the carrier of a deadly virus and so caused irreparable damage
to the public health. This is a very grave offence so the court can deny the bail on the basis
of well-established provisions, and since the protection of the society occupies a higher
ground than that of an individual’s rights, the court is well within its powers to deny said
bail for the protection of the society.

[6] However keeping in view the twin conditions of bail as mentioned in Sec 439A of the Code
of Criminal Procedure(Ozalan),19736 where it provides firstly that the public prosecutor

4
(2004) 7 SCC 521
5
Ibid.
6
¶6 Page 7, supra Note 1.

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should be given an opportunity to oppose such a release and secondly and most importantly
that the court must be satisfied that the person is not guilty of such an offence, thus the
counsel humbly submits that these provisions are not unreasonable or unconstitutional as
they provide an impetus to the government and the court to satisfy itself if there will be any
harm to the public order and safety by granting bail to any person.

1.2 Whether Section 439A violate fundamental rights guaranteed under the
Constitution of Ozala?
The counsel for the respondent humbly submits and argues that Sec. 439A doesn’t violate
the fundamental rights guaranteed under the Constitution of Ozala.

[7] The council Human rights of accused as conferred by the Constitution has to be balanced
against the growing crime rate and the need to protect society from criminals. Thus the law
of bails “has to be dovetail two conflicting demands, namely, on one hand, the requirements
of society for being shielded from the hazards of being exposed to the misadventures of a
person alleged to have committed a crime; and on the other, the fundamental canon of
criminal jurisprudence viz., the presumption of innocence of an accused till he is found
guilty.”7

I. Nexus between the basis of classification and object intended- Article 14

[8] In the case of R C Cooper v Union of India8, it was held, “By Art. 14 of the Constitution
the State is enjoined not to deny any person equality before the law or the equal protection
of the laws within the territory of India. The Article forbids class legislation, 'but not
reasonable classification in making laws. The test of permissible classification under an
Act lies in two cumulative conditions : (i) classification under the Act must be founded on
an intelligible differentia distinguishing persons, transactions or things grouped together
from others left out of the group; and (ii) the differentia has a rational relation to the object
sought to be achieved by the Act : there must be a nexus between the basis of classification
and the object of the Act.”

[9] Therefore, it is necessary to prove that the “twin conditions” of bail in Sec. 439A of Ozalan
Code of Criminal Procedure, 1973 has a nexus between the basis of classification and the

7
Superintendent Re Membrancers of Legal Affairs v Amiya Kumar Roy Choudhury Alias Dadaji AIR 1973 113

8
1970 AIR 564, 1970 SCR (3) 530
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object.

[10] As per Article 21 of the Constitution9, “No person shall be deprived of his life or
personal liberty except according to procedure established by law”. Since Maneka
Gandhi10, Article 21 has proved to be multi-dimensional. This extension in the dimensions
of Article 21 has been made possible by giving an extended meaning of the word ‘life’ and
‘liberty’ in Article 21. It therefore includes all those aspects of life which go to make a
man’s life meaningful, complete and worth living. Right to Health is one such aspect of
Article 21.

[11] The Supreme Court has emphasized in Vincent v UOI11, that a healthy body is the very
foundation of all human activities. The Court has observed, “maintenance and
improvement of public health have to rank high as these are indispensable to the very
physical existence of the community and on the betterment of these depends the building of
the society of which the constitution makers envisaged. Attending to public health, in our
opinion, therefore, is of high priority – perhaps the one at the top”.

[12] Article 4712, a Directive Principle also lays stress on improvement of public health and
standard of living. Under the International Covenant on Economic, Social and Cultural
Rights 196613, which most countries have adopted, everyone has the right to “the highest
attainable standard of physical and mental health.” Governments are obligated to take
effective steps for the “prevention, treatment and control of epidemic, endemic,
occupational and other diseases.”

[13] The United Nations Committee on Economic, Social and Cultural Rights, which
monitors state compliance with the covenant, has stated that: “The right to health is closely
related to and dependent upon the realization of other human rights, as contained in the
International Bill of Rights, including the rights to food, housing, work, education, human
dignity, life, non-discrimination, equality, the prohibition against torture, privacy, access

9
¶4, Page 7, STATEMENT OF FACTS, THE K.K LUTHRA MEMORIAL MOOT COURT, 2021. Ozala
Constitution guarantees the same set of fundamental rights to persons as Part III of the Indian Constitution.
10
Maneka Gandhi v Union of India, AIR 1978 SC 597: (1978) 1 SCC 248
11
1987 AIR 990, 1987 SCR (2) 468.
12
The Constitution of Ozala. According to the Article, The State shall regard the raising of the level of nutrition
and the standard of living of its people and the improvement of public health as among its primary duties and, in
particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes
of intoxicating drinks and of drugs which are injurious to health.
13
India ratified ICESCR on 10 April, 1979
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to information, and the freedoms of association, assembly and movement. These and other
rights and freedoms address integral components of the right to health.”

[14] The Siracusa Principles14, adopted by the UN Economic and Social Council in 1984,
and UN Human Rights Committee general comments on states of emergency and freedom
of movement provide authoritative guidance on government responses that restrict human
rights for reasons of public health or national emergency. Any measures taken to protect
the population that limit people’s rights and freedoms must be lawful, necessary, and
proportionate. Restrictions on some rights can be justified when they have a legal basis, are
strictly necessary, based on scientific evidence and neither arbitrary nor discriminatory in
application, of limited duration, respectful of human dignity, subject to review, and
proportionate to achieve the objective.

[15] Hence, by imposing the ‘twin conditions’ of bail, the State, here, has the objective to
safeguard the right to health of the citizens by not giving the accused a chance to again
commit the offence when out on bail. Therefore, there is a nexus between the classification
and the object.

II. Right to bail and Article 21

[16] As per Article 21 of the Constitution of Ozala15, “No person shall be deprived of his
life or personal liberty except according to procedure established by law”. Liberty is a
dynamic concept; therefore, continual research is necessary to regularly assess the changing
dimension of the right to personal liberty guaranteed. The entire intention of law is justice.

[17] Section 3 of the Epidemic Diseases Act, 1897 confers that “any person disobeying any
regulation or order made under this Act shall be deemed to have committed an offence
punishable under section 188 of the Ozalan Penal Code”. Thus, amendment pertaining to
Sec. 439A of the Code of Criminal Procedure16 made Sec. 188 of the Penal Code17 a non-
bailable offence.

14
The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and
Political Rights, published on 28 September, 1984
15
¶4, Page 7, supra Note 9.
16
¶6 Page 7, supra Note 1.
17
¶5 Page 7, supra Note 2.
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[18] As per Section 2(a) of Cr.P.C18, non-bailable offence includes all those offences which
are not included in bailable offences in the First Schedule19. A person accused of a non-
bailable offence doesn’t have right to be released on bail but the bail can be granted at the
discretion of the court, subject to certain conditions given in Section 437 of Cr.P.C20.
Hence, the following factors must be taken into consideration before refusing bail for a
non-bailable offence: -

1. The nature and gravity of the accusation and the exact role of the accused must be
properly comprehended.

2. The antecedents of the applicant include the fact as to whether the accused has
previously undergone imprisonment by conviction in Court in respect of any cognizable
offence.

3. The possibility of the applicant to flee from justice.

4. The possibility of the accuser’s likelihood to repeat similar or the other offences.

[19] It is very likely that Ms. Quantisa will repeat the offence for which she is arrested. We
can say that because despite knowing she was tested positive for Covid-1921, she
endangered the lives of all the people who attended the congregation and even made them
drink the holy water22. Hence, there is no violation of her fundamental right to life and
liberty under article 21 by Section 439A of the Ozalan Code of Criminal Procedure, 197323.

III. Right to freedom of movement under Article 19

[20] While it is necessary to maintain and preserve freedom under Article 19(1) in a
democracy, so also it is necessary to place some curbs on this freedom for the
maintenance of social order. No freedom can be absolute.24 Under Article 19(2), a
restriction can be imposed ‘in the interest of’ public order, incitement to an offence,
etc. The word ‘offence’ has not been defined in the Constitution but according to the

18
¶6 Page 7, supra Note 1.
19
Ibid.
20
Ibid.
21
¶9, Page 4, STATEMENT OF FACTS, THE K.K LUTHRA MEMORIAL MOOT COURT, 2021.
22
¶8, Page 3, STATEMENT OF FACTS, THE K.K LUTHRA MEMORIAL MOOT COURT, 2021.
23
¶6 Page 7, supra Note 1.

24
Ramlila Maidan Incident v Home Secretary, UOI (2012) 2 MLJ 32 (SC)

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General Clauses Act25 it means any act or omission made punishable by law. This is a
broad concept and so it is possible for the Legislature to create an offence and make
incitement thereto punishable.

[21] In Ram Manohar Lohia26, it was observed that “the connection between the act
prohibited or penalised and public order should be intimate. In other words, there
should be a reasonable nexus and rational relation between it and the object sought to
be achieved, viz, the public order.”

[22] While understanding the ambit of the words ‘any condition’, the Supreme Court in the
case of Sumit Mehta v State of NCT Delhi27 observed that: “The words ‘any condition’
used in the provision should not be regarded as conferring absolute power on a Court of
law to impose any condition that it chooses to impose. Any condition has to be interpreted
as a reasonable condition acceptable in the facts permissible in the circumstance and
effective in the pragmatic sense and should not defeat the order of grant of bail.”28

[25] The Supreme Court in the case of Maneka Gandhi v. Union of India29 held that a law
depriving a person of ‘personal liberty’ has not only to stand the test of Article 21 but also
Article 14 and Article 19. Arguments have been placed above that section 439A of the
Code of Criminal Procedure is not violative under article 14, 19 and 21 of the constitution
of Ozala. The object which is sought to be achieved is controlling the spread of Covid-19
and protect the people. Thus, section 439A of Ozalan Code of Criminal Procedure, 1973 is
not violative to article 19.

[26] Thus the counsel for the respondent humbly submits that the additional conditions for
grant of bail under Section 439A of the Code of Criminal Procedure doesn’t violate the
fundamental rights guaranteed under the Constitution of Ozala.

25
The General Clauses Act, 1897
26
Ram Manohar Lohia v Supdt., Centarl Prison, AIR 1955 All 193

27
Bail Application no. 1479 of 2012
28
In Hazarilal v Rameshwar Prasad28 , the court held that an accused cannot be subjected to any condition
which is unfair and not pragmatic. The onus is on the courts to ensure that the conditions imposed on the accused
are in consonance with the intendment and the provisions of the code.
29
AIR 1978 SC 597
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PRAYER FOR RELIEF

It is hereinafter most humbly prayed before he Hon’ble court that in the light of the issues
raised, arguments advanced and authorities cited, the Counsel on the behalf of the petitioner
humbly prays that the Hon’ble Court be pleased to adjudge and declare that:

1. The Hon’ble Court on its discretion declare the denial of bail of Ms. Quantisa valid.

2. The Hon’ble Court hold the ‘twin conditions’ as provided in Section 439A of the Code of
Criminal Procedure 1973 as constitutionally valid.

The court may also be pleased to pass any other order, which this Hon’ble Court may deem
fit in light of Justice, Equity and Good Conscience.

All of which is respectfully affirmed and submitted.

-Counsels on Behalf of Respondent-

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