MEMORIAL ON BEHALF OF THE PETITIONER

Justice S.B. Mhase Second State Level Moot Court Competition- 2019

TEAM CODE – P 19

BEFORE THE HON’BLE

HIGH COURT OF BOMBAY, AURANGABAD BENCH

WRIT JURISDICTION

W.P. (CRIMINAL) NO. ___ OF 2019

UNDER ARTICLE 226 OF THE CONSTITUTION OF INDORA

Mr. A …Petitioner(s)

V.
Union of Indora …Respondent(s)

UPON SUBMISSION TO THE HON’BLE JUDGE AND HIS COMPANION

JUDGES OF THE HIGH COURT OF BOMBAY, AURANGABAD BENCH

MEMORANDUM ON BEHALF OF THE PETITIONER

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 MEMORIAL ON BEHALF OF THE PETITIONER

TABLE OF CONTENTS

Table of Contents....................................................................................................2

List of Abbreviations................................................................................................3

Content of Citation..................................................................................................4-7

Statement of Jurisdiction..........................................................................................8-9

Statement of Facts...................................................................................................9-10

Statement of Issues..................................................................................................11

Summary of Arguments...........................................................................................12

Arguments Advanced

I. The Writ Petition brought before this Hon’ble Court is maintainable.

I.1 Jurisdiction of High Court under Article 226 can always be invoked.............13-15

I.2 Relief cannot be barred by any statute.............................................................15

I.3 Existence of Alternative Remedy is no bar to file petition..............................16

I.4 Any harassment of innocent citizen is against the guarantee

of the Constitution................................................................................................17-18

II. The amendment in S. 438 of CrPC restricting grant of anticipatory bail in

case of rape of minor girls aged below 16 years is unjustifiable.

II.1 Over-riding effect of Central Laws over State Laws....................................19-21

II.2 S. 438(4) is an absolute restriction and hence unnecessary...........................21-23

II.3 S. 438(4) of CrPC inclusive of S. 376(3) of IPC violates

the Fundamental Rights of the Constitution and hence unconstitutional.............24-27

II.4 S. 438(4) of CrPC is erroneous in restricting the powers of

Sessions Court and High Court to grant anticipatory bail....................................28-30

III. The petitioner is entitled to get anticipatory bail.

III.1 Petitioner‟s case falls within the ambit of S. 438 of CrPC...........................30-33

III.2 Presumption of innocence until proven guilty

beyond reasonable doubt.....................................................................................33-36
III.3 Good reputation of the petitioner does not permit
rejection of anticipatory bail................................................................................36-37
The Prayer............................................................................................................38

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LIST OF ABBREVIATIONS

Admn. Administration
Anr. Another
Art. Article
Arts. Articles
Corpn. Corporation
CrPC Criminal Procedure Code
Ed. Edition
HC High Court
IPC Indian Penal Code
Ltd. Limited
Mfg. Manufacturing
Ors. Others
Para Paragraph
POCSO The Protection of Child from Sexual Offences Act
S. Section
SC Supreme Court
w.r.t. with respect to

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CONTENTS OF CITATION

CASES
1. A.K. Gopalan v. State of Madras, (1950) SC 27.
2. A.V. Venkateswaran v. R.S. Wadhwani, (1962) 1 SCR 753.
3. Adri Dharam Das v. State of West Bengal, (2005) SC 1706.
4. Anuj Garg and others v. Hotel Association of India and Ors., (2008) 3 SCC 1.
5. Ashok Kumar v. State, 2014 SCC 3995.
6. B.N. Mutto & Another v. Dr. T.K. Nandi, (1979) 1 SCC 361.
7. Babu Singh v. State of Uttar Pradesh, (1978) SC 527.
8. Bhadresh Bipinbhai Sheth v. State of Gujarat and Another, (2016) 1 SCC
152.
9. Bhagwan Singh and Others v. State of M.P, (2002) 4 SCC 85.
10. Bhoori v. The State of Madhya Pradesh, (1993) MPLJ 197.
11. Charu Khurana and others v. Union of India and Ors., (2015) 1 SCC 192.
12. Chikkarangaiah v. State, (2009) 17 SCC 497.
13. Chunnilal Mehta v. Century Spinning & M Co. Ltd., (1962) SC 1314.
14. Dale & Carrington Investment Ltd. v. P.K. Prathapan, (2005) 1 SCC 212.

15. Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240.

16. Gurbaksh Singh v. State of Punjab, (1980) 3 SCR 383.
17. Gurcharan Singh v. State Delhi (Admn), (1978) 1 SCC 118.

18. Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 6 SCC 581.
19. Haryana State Industrial Corporation v. Cork Mfg. Co., (2008) SC 56.

20. Hema Mishra v. State of U.P & Ors, (2014) 4 SCC 453.
21. Himmatlal Harilal Mehta v. State of M.P., (1954) SC 403.
22. Hoechst Pharmaceuticals Ltd. v. State of Bihar, (1983) 4 SCC 45.
23. Iqbal Singh v. Meenakshi, (2005) 4 SCC 370.
24. Jai Prakash Singh v. State of Bihar, (2012) 2 SC 2101.
25. Joginder Singh v. State, (1974) Cri. L.J. 1379.
26. K. Thimmappa v. Chairman, Central Board of Directors, SBI, (2001) SC 467.
27. Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
28. Kesavananda Bharati Vs. State of Kerala, 1973 (4) SCC 225.

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29. L. Chandra Kumar v. Union of India and Others, (1997) 3 SCC 261.
30. M Karunanidhi v. Union of India, (1979) 3 SCC 431.
31. Maneka Gandhi v. Union of India, (1978) 2 SCR 621.
32. Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641.
33. Narendra Singh and Another v. State of M.P., (2004) 10 SCC 699.
34. Pravin Ghai Kashiram Bhai Patel v. State of Gujarat, (2010) 4 SC 3867.
35. R.K. Krishna Kumar v. State of Assam, (1998) 1 SCC 474.
36. Ranjitsing Brahm Jeetsing Sharma v. State of Maharashtra, (2005) 5 SCC
294.
37. Rohoni v. The State of Karnataka, (2016) SCC 115.
38. S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124.
39. Sajjan Kumar v. State, (1991) SC 645.
40. Sangram Singh v. Election Tribunal, (1955) SC 425.
41. Satish v. State of Haryana, (2012) 4 SCC 510.
42. Savitri Agrawal v. State of Mahrashtra and Anr., (2009) 4 SC 4290.
43. Shibram Bhowmick v. State of West Bengal, (2011) 3 CHN 650.
44. Siddharam Satlingappa Mhetre v. State of Maharshtra, (2011) 1 SCC 694.
45. State of Assam v. Brojen Gogol, (1998) 1 SCC 397

46. State of Haryana v. Haryana Coop. Transport Ltd., (1977) 1 SCC 271.
47. State of Maharashtra v. Bharat Shanti Lal Shah, (2008) 13 SCC 5.
48. State of U.P. v. Indian Hume Pipe Co., (1977) 2 SCC 724.
49. State of U.P. V. Mohd. Nooh, (1958) SC 86.
50. Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454.
51. Teru Majhi andOrs. v. State of West Bengal and Ors., (2015) SC 1017.

BOOKS

1. M.P. Jain, Indian Constitutional Law, 8th Edition 2018, Lexis Nexis,
Butterworth Wadhwa Publications, Nagpur.
2. Dr. J.N. Pandey, Constitutional Law of India, 53rd Edition 2016, Central Law
Agency.
3. DD Basu, Constitution of India, 23rd Edition, 2018, Lexis Nexis, Butterworth
Wadhwa Publications, Nagpur.

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4. Gaur KD, The Indian Penal Code, 6th Edition, 2016, Universal Law Publishing
Co. Pvt. Ltd.
5. Ratanlal and Dhirajlal, The Code of Criminal Procedure, 22nd Edition, 2017,
Lexis Nexis, Butterworth Wadhwa Publications, Nagpur.
6. Justice PS Narayan, Commentary on the Protection Of Children from Sexual
Offences Act, 2012 and rules, 2nd Edition, 2018, Universal Law Publishing
Co. Pvt. Ltd.
7. Dr.Manjula SR, The Children and Laws in India, 1st Edition, 2018, Notion
Press.
8. Ratanlal and Dhirajlal, The Law Of Evidence, 26th Edition, 2017, Lexis Nexis,
Butterworth Wadhwa Publications, Nagpur.

LEGAL DATABASES

1. Manupatra
2. SCC Online
3. Westlaw
4. Indian Kanoon
5. Heinonline

LEXICONS

1. Bryan A. Garner, Black‟s Law Dictionary, 10th edition, 2014, Thomson West
Group
2. P. Ramanath, Concise Law Dictionary, 6th edition, 2018, LexisNexis,
Butterworth Wadhwa Publications, Nagpur.
3. The Chambers‟ Twentieth Century Dictionary, 13th edition, John Murray
Learning

LEGISLATIONS

1. The Constitution of India, 1950

2. Code of Criminal Procedure, 1973
3. Indian Penal Code, 1860
4. Criminal Law (Amendment) Act, 2018
5. Protection Of Children from Sexual Offences Act, 2012
6. Indian Evidence Act, 1872

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CONVETIONS

1. Universal Declaration of Human Rights, 1948

ARTICLE

1. Abhishek Gupta, Decoding “Deterrence: A Critic of The Criminal Law

(Amendment) Act, 2018

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STATEMENT OF JURISDICTION

The Petitioners have approached the Hon‟ble High Court of Bombay (Aurangabad
Bench) under Article 226 of the Constitution of Indora, 1950.

226. Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers,
throughout the territories in relation to which it exercise jurisdiction, to issue to any
person or authority, including in appropriate cases, any Government, within those
territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action, wholly or in
part, arises for the exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person is not within those
territories.
(3) Where any party against whom an interim order, whether by way of injunction or
stay or in any other manner, is made on, or in any proceedings relating to, a petition
under clause ( 1 ), without;
(a) furnishing to such party copies of such petition and all documents in support of
the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High
Court for the vacation of such order and furnishes a copy of such application to the
party in whose favour such order has been made or the counsel of such party, the
High Court shall dispose of the application within a period of two weeks from the
date on which it is received or from the date on which the copy of such application is
so furnished, whichever is later, or where the High Court is closed on the last day of
that period, before the expiry of the next day afterwards on which the High Court is
open; and if the application is not so disposed of, the interim order shall, on the
expiry of that period, or, as the case may be, the expiry of the aid next day, stand
vacated.

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(4) The power conferred on a High Court by this article shall not be in derogation of
the power conferred on the Supreme court by clause ( 2 ) of Article 32.
The petitioner most humbly submits before the jurisdiction of the present court and
accepts that it has power and authority to preside over the present case.

STATEMENT OF FACTS

 Government of Indora issued the Criminal Law (Amendment) Ordinance, 2018.

The ordinance was signed by the President of India and it came into force on April
21, 2018. The Ordinance enhanced punishments (including capital punishment)
for offenders convicted of raping minors, and wide ranging changes were
introduced in procedural laws.
 The said ordinance was repealed by passing Criminal Law (Amendment) Act,
2018. The following Act received the assent of the President on the 11th August,
2018, and was deemed to have come into force as on the 21st day of April, 2018.
 The CLAA, which replaced the Ordinance with a retrospective effect, amends
four central legislations namely: The IPC, 1860; the Code of Criminal Procedure,
1973 (Cr P C); the Indian Evidence Act, 1872 (IEA); the Protection of Children
from Sexual Offences Act, 2012 (POCSO).
 The following Act inserted clause 3 to Section 376 of the Indian Penal Code,
namely:
"(3) Whoever, commits rape on a woman under sixteen years of age
shall be punished with rigorous imprisonment for a term which shall
not be less than twenty years, but which may extend to imprisonment
for life, which shall mean imprisonment for the remainder of that
person's natural life, and shall also be liable to fine: Provided that such
fine shall be just and reasonable to meet the medical expenses and
rehabilitation of the victim: Provided further that any fine imposed
under this sub-section shall be paid to the victim."
 The Act further inserted clause 4 to Section 438 of Criminal Procedure Code,
namely:

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“(4) Nothing in this section shall apply to any case involving the arrest
of any person on accusation of having Committed an offence under
sub-section 3 of sec. 376 or sec .376 AB or 376 DA or sec 376 DS of
the Indian Penal Code.”
 In the same year, on 5th Sept 2018, a person named „A‟ aged 25 years was alleged
to have committed an offence of rape as against a girl namely „B „whose age is 15
years 11 month and 15 days, at the place of Aurangabad District in State of
Maharashtra.
 Accordingly the F.I.R was lodged as against A under sec.376 (3) of Indian Penal
Code (newly inserted by Criminal law Amendment Act 2018) and Section 8 of
Protection of Children from Sexual Offences Act, 2012.
 Aggrieved by the amendment in Section 438 of Criminal Procedure Code
(restricting grant of anticipatory bail by Sessions Court or High Court in rape
cases), A has filed a writ petition before the Honourable High Court of
Maharashtra State under Article 226 of Constitution of Indora.

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STATEMENT OF ISSUES

ISSUE I

Whether or not the Writ Petition brought before this Hon’ble Court is
maintainable?

ISSUE II

Whether or not the amendment in S. 438 of CrPC restricting grant of

anticipatory bail in case of rape of minor girls aged below 16 years is
unjustifiable?

ISSUE III

Whether or not the petitioner is entitled to get anticipatory bail?

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SUMMARY OF ARGUMENTS

ISSUE I

The Writ Petition brought before this Hon’ble Court is maintainable.

The Writ Petition made in furtherance to the Hon‟ble High Court by the aggrieved
petitioner is maintainable under Article 226 of the Constitution of Indora as: firstly,
the jurisdiction of High Court under Article 226 can always be invoked; secondly,
relief cannot be barred by any statute; thirdly, existence of Alternative Remedy is no
bar to file petition, and fourthly, any harassment of innocent citizen is against the
guarantee of the Constitution.

ISSUE II

The amendment in S. 438 of CrPC restricting grant of anticipatory bail in case

of rape of minor girls aged below 16 years is unjustifiable.

The amendment in S. 438 of CrPC, 1973 restricting grant of anticipatory bail in case
of rape of minor girls aged below 16 years is unjustifiable: firstly, Section 438(4) is an
absolute restriction and hence unnecessary; secondly, Section 438(4) of CrPC
inclusive of S. 376(3) of IPC violates the Fundamental Rights of the Constitution as
enshrined under Articles 14, 15, 19 and 20 and hence unconstitutional; thirdly, S.438
(4) of CrPC is erroneous in restricting the powers of Session Court and High Court to
grant anticipatory bail.

ISSUE III

The petitioner is entitled to get anticipatory bail.

The petitioner is entitled to get anticipatory bail under S. 438 of CrPC, 1973 because:
firstly, petitioner‟s case falls within the ambit of S. 438 of CrPC, 1973; secondly,
petitioner has presumption of innocence until proven guilty beyond reasonable doubt;
and thirdly, good reputation of the petitioner does not permit rejection of anticipatory
bail.

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ARGUMENTS ADVANCED

I. The Writ Petition brought before this Hon’ble Court is maintainable.

The Writ Petition made in furtherance to the Hon‟ble High Court by the aggrieved
petitioner is maintainable under Article 226 of the Constitution of Indora as: firstly,
the jurisdiction of High Court under Article 226 can always be invoked; secondly,
relief cannot be barred by any statute; thirdly, existence of Alternative Remedy is no
bar to file petition, and fourthly, any harassment of innocent citizen is against the
guarantee of the Constitution.

I.1 Jurisdiction of High Court under Article 226 can always be invoked

Firstly, the counsel is of the view that the High Court of Maharashtra has jurisdiction
under Article 226 as the arrest was apprehended by the accused for an offence alleged
to be committed over the Aurangabad district of Maharashtra. Since, the Supreme
Court in many cases seem to have favour the view that the petition for granting bail to
any person who is allegedly concerned with the offence must for all practical
purposes be considered by the courts within whose territorial jurisdiction such
offences could have been perpetrated.1 In the instant case, the High Court of
Maharashtra has territorial jurisdiction over the said matter.

Secondly, the Counsel submits that, in plethora of cases it has been held that
whenever a question of challenging the constitutional validity of Central laws arises,
the jurisdiction of High Court can be invoked. The jurisdiction conferred under Art.
226 on the High Court are corrective one and not a restrictive one 2.

In the present case, the issue involves the question of validity of newly inserted S. 438
(4) of Criminal Procedure Code3 which restricts the power of Sessions Court or High
Court to grant anticipatory bail to the person accused of committing rape on a woman

1
State of Assam v. Brojen Gogol, (1998) 1 SCC 397; R.K. Krishna Kumar v. State of Assam, (1998) 1
SCC 474.
2
Haryana State Industrial Corporation v. Cork Mfg. Co. (2008) SC 56.
3
Inserted by Act 22 of 2018, S.22 (w.r.e.f. 21-4-2018).

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under 16 years of age and thus, the Hon‟ble HC is well within its rights and
jurisdiction to accept the writ petition on application from the petitioner. 4

Thirdly, it is submitted that the writ jurisdiction of High Court under Article 226 can
be exercised in circumstances where there is any substantial question of law involved.
The expression "substantial question of law"5is not defined in any legislation.
Nevertheless, it has acquired a definite connotation through various judicial
pronouncements. A Constitution Bench of the Apex Court, while explaining the
import of the said expression, observed that: “The proper test for determining
whether a question of law raised in the case is substantial would, in our opinion, be
whether it is of general public importance or whether it directly and substantially
affects the rights of the parties and if so whether it is either an open question in the
sense that it is not finally settled by this Court or by the Privy Council or by the
Federal Court or is not free from difficulty or calls for discussion of alternative
views.”6

In the instant case, the legally protected rights of the petitioner under Section 438 of
Criminal Procedure Code and his fundamental right of freedom of life and liberty
under Article 21 of Constitution of Indora are adversely affected by the recent
amendment in the anticipatory bail provision. Therefore, the petitioner has right to
approach the Hon‟ble Court under Article 226 of Constitution of Indora.

In the case of Gurbaksh Singh Sibbia v. State of Punjab7, it was held that Section
438 is a procedural provision which is concerned with the personal liberty of an
individual who has not been convicted of the offence in respect of which he seeks bail
and who must be presumed to be innocent. The validity of that section must
accordingly be examined by the test of fairness and which is implicit in Article 21. If
the legislature itself were to impose an unreasonable restriction could have been
struck down as being violative of Article 21. Therefore, while determining the scope

4
Ibid.
5
Dale & Carrington Investment Ltd. v. P.K. Prathapan, (2005) 1 SCC 212.
6
Chunnilal Mehta v. Century Spinning & M Co. Ltd., (1962) SC 1314.
7
(1980) 3 SCR 383.

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of section 438, the Court should not impose any unfair or unreasonable limitation on
the individual's right to obtain an order of anticipatory bail.

Thus, from the above-mentioned authority, it is quite evident that S.438(4) restricting
application for bail violates the fundamental rights of the petitioner and hence the writ
petition filed before the High Court is maintainable under Art. 226.

I.2 Relief cannot be barred by any Statute

It is humbly submitted by the counsel that it is well settled and held by the Supreme
Court that the powers conferred on the High Court under Article 226 could not be
taken away or abridged by any law, Act of parliament or even by any amendment of
the Constitution.8 Power of judicial review cannot be taken away because judicial
review is the basic feature of the Constitution which is unamendable. 9.

For the purpose of validating the above-mentioned submission, the counsel has placed
reliance on the case of L. Chandra Kumar v. Union of India and Others10, wherein
the Apex Court after considering the earlier judgments of it including the celebrity
judgment of Kesavananda Bharati Vs. State of Kerala 11 held that the “jurisdiction of
the High Court under Article 226 of the Constitution of India cannot be barred and
any law barring the jurisdiction of the High Court under Article 226 of the
Constitution of India offends the basic structure of the Constitution and hence not
permissible.”

The petitioner thereby submits that under S.438 (4) of CrPC, though there is a bar on
the powers of High court or Sessions Court to grant bail in rape cases of women
below 16 years of age still the powers conferred on the High Court or Sessions Court
cannot be taken away by the said statutory provision inserted by CLAA, 2018 as
when by any constitutional amendment, remedy of writ before a High Court cannot be
barred, same cannot be done by any Parliamentary legislation or by State enactment.

8
Sangram Singh v. Election Tribunal, (1955) SC 425; State of Haryana v. Haryana Coop. Transport
Ltd., (1977) 1 SCC 271; Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
9
S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124.
10
(1997) 3 SCC 261.
11
1973 (4) SCC 225.

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I.3 Existence of Alternative Remedy is no bar to file petition

It is submitted by the counsel that the rule when there is an adequate remedy, the High
Court will not interfere under Article 226 is only a rule of discretion and not a rule of
law12. It is always a matter of discretion with the Court and if the discretion has been
exercised by the High Court not unreasonably and perversely, it is a settled law
practice of the Supreme Court not to interfere with the exercise of discretion by the
High Court13.

In State of U.P. V. Mohd.Nooh14, the Supreme Court observed that the rule requiring
the exhaustion of statutory remedies before the writ will be granted is a rule of policy,
convenience and discretion rather than a rule of law and instances are numerous
where a writ of certiorari has been issued in spite of the fact that the aggrieved party
had other adequate legal remedies.

The High Court will issue a writ, although an adequate remedy exists, where there is a
patent want of jurisdiction, or where there has been a denial of natural justice, or
where the vires of the Act are itself impugned, or where party comes to the Court with
an allegation that his/her fundamental rights have been infringed and seeks relief
under Article 226.15

In Harbanslal Sahnia v. Indian Oil Corpn. Ltd.16, the court held that the High Court
could entertain petitions in the following contingencies even if alternative remedy was
available. They are: a) where the enforcement of fundamental rights are sought, b)
where principles of natural justice have not been observed, and c) where the orders or
proceedings are wholly without jurisdiction.

In the present case, principles of natural justice as well as the petitioner‟s fundamental
rights under Articles, 14, 15, 19 and 20 of the Constitution have been violated and the

12
A.V. Venkateswaran v. R.S. Wadhwani, (1962) 1 SCR 753.
13
State of U.P. v. Indian Hume Pipe Co., (1977) 2 SCC 724.
14
(958) SC 86.
15
Himmatlal Harilal Mehta v. State of M.P., (1954) SC 403.
16
(2003) 6 SCC 581.

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 MEMORIAL ON BEHALF OF THE PETITIONER

alternative remedy available to him under S.482 of CrPC is inefficacious. Thus, the
Hon‟ble High Court has absolute right to entertain his petition.

I.4 Any harassment of Innocent Citizen is against the guarantee of the

Constitution

S.438 (4) of CrPC bars grant of anticipatory bail to any person accused of committing
rape of a woman below the age of 16 years. The petitioner humbly submits that the
said provision violates the basic principle of criminal jurisprudence to be presumed to
be innocent until proved guilty, thereby going against the Fundamental Rights of the
Constitution.

Section 438 (4) of CrPC states that “Nothing in this section shall apply to any case
involving the arrest of any person on accusation of having committed an offence
under sub-section (3) of section 376 or section 376AB or section 376DA or section
376DB of the Indian Penal Code."

It is argued by the counsel that in the present case, the petitioner is “alleged” to have
committed rape of a girl aged 15 years 11 months and 15 days, which means that he is
just presumed to have committed the rape, his guilt has not yet been proven. There is
always a probability of the accused being innocent and thus, it is asserted that a mere
allegation cannot be enough to deprive a person of his fundamental right. Such
version of the victim may at times be self serving and for extraneous reason.
Jeopardizing liberty of a person on an untried unilateral version, without any
verification or tangible material, is against the fundamental rights guaranteed under
the Constitution. Therefore, a fair, just and reasonable procedure must be followed
before right to life and personal liberty of an individual is taken away.

It is further argued by the counsel that the bar on grant of bail amounts to deprivation
of personal liberty, and therefore the court should lean against the imposition of
unnecessary restrictions on the scope of Section 438. Section 438 is a procedural
provision which is concerned with the personal liberty of the individual, who is
entitled to the benefit of the presumption of innocence since he is not, on the date of
his application for anticipatory bail, convicted of the offence in respect of which he
seeks bail. An over-generous infusion of constraints and conditions which are not to
be found in Section 438 can make its provisions constitutionally vulnerable since the

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right to personal freedom cannot be made to depend on compliance with unreasonable

restrictions. The beneficent provision contained in Section 438 must be saved, not
jettisoned. No doubt can linger after the decision in Maneka Gandhi’s case17, that in
order to meet the challenge of Article 21 of the Constitution, the procedure
established by law for depriving a person of his liberty must be fair, just and
reasonable.
In the case of Babu Singh v. State of Uttar Pradesh18, the Court held that right to bail
was included in the personal liberty under Article 21 and its refusal would be
deprivation of that liberty which could be authorized in accordance with the procedure
established by law.
In Gurbaksh Singh vs. The State of Punjab19, wherein the court drew a distinction
between an ordinary order of bail and an order of anticipatory bail and also held that
in order to meet the challenge of Article 21 of the Constitution, the procedure
established by law for depriving a person of his liberty must be fair, just and
reasonable. Section 438, in the form in which it is conceived by the legislature, is
open to no exception on the ground that it prescribes a procedure which is unjust.
Therefore, it is humbly concluded by the counsel, that the petitioner being innocent
cannot be rejected application of anticipatory bail as it would go against the
Fundamental Rights of the Constitution.

II. The amendment in Section 438 of CrPC restricting grant of anticipatory bail
in case of rape of minor girls aged below 16 years is unjustifiable.

The amendment in S. 438 of CrPC, 1973 restricting grant of anticipatory bail in case
of rape of minor girls aged below 16 years is unjustifiable: firstly, Section 438(4) is an
absolute restriction and hence unnecessary; secondly, Section 438(4) of CrPC
inclusive of S. 376(3) of IPC violates the Fundamental Rights of the Constitution as
enshrined under Articles 14, 15, 19 and 20 and hence unconstitutional; thirdly, S.438
(4) of CrPC is erroneous in restricting the powers of Session Court and High Court to
grant anticipatory bail.

17
(1978) 2 SCR 621.
18
(1978 ) SC 527.
19
(1980) 2 SCC 565.

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II.1 Over-riding effect of Central Laws over State Laws

It is submitted by the counsel that both the Centre and the State (State of Maharashtra)
have made their respective legislations over Section 438 of CrPC, 1973 as powers
relating to legislation of criminal laws fall under the Concurrent List. The Central
Law Amendment Act, 2018 inserted sub-section (4) in S. 438 of CrPC wherein grant
of anticipatory bail in case of rape of minor girls aged below 16 years has been
restricted. However, it is further submitted by the counsel that no such restriction has
been inserted in S. 438 of the Maharashtra State amendment. It is, therefore, argued
that in the instant case, question arises as to which law shall be applied as the cause of
action arose in Maharashtra and that after the above-mentioned insertion, a direct
conflict arose between the two laws. It is argued by the counsel that repugnancy arises
as a result of this insertion and the conditions for repugnancy as laid down in the case
of M Karunanidhi v. Union of India20 are fulfilled as under:

1) There is a clear and direct inconsistency between the Central Act and the State
Act.
2) Such an inconsistency is absolutely irreconcilable.
3) Inconsistency between the provisions of the two Acts is of such a nature as to
bring the two Acts into direct collision with each other and a situation is
reached where it is impossible to obey the one without disobeying the other.

Article 254 of the Constitution states:

“Inconsistency between laws made by Parliament and laws made by the Legislatures
of States
1) If any provision of a law made by the Legislature of a State is repugnant to
any provision of a law made by Parliament which Parliament is competent to
enact, or to any provision of an existing law with respect to one of the matters
enumerated in the Concurrent List, then, subject to the provisions of clause
(2), the law made by Parliament, whether passed before or after the law made
by the Legislature of such State, or, as the case may be, the existing law, shall
prevail and the law made by the Legislature of the State shall, to the extent of
the repugnancy, be void.

20
(1979) 3 SCC 431.

19
 MEMORIAL ON BEHALF OF THE PETITIONER

2) Where a law made by the Legislature of a State with respect to one of the
matters enumerated in the concurrent List contains any provision repugnant to
the provisions of an earlier law made by Parliament or an existing law with
respect to that matter, then, the law so made by the Legislature of such State
shall, if it has been reserved for the consideration of the President and has
received his assent, prevail in that State: Provided that nothing in this clause
shall prevent Parliament from enacting at any time any law with respect to the
same matter including a law adding to, amending, varying or repealing the
law so made by the Legislature of the State.

It is then argued by the counsel, that by virtue of Article 254(1) of the Constitution,
the Central laws have over-riding effect over the State laws in matters mentioned in
the Concurrent List. The predominance character of Central laws over the state laws is
well established and explained in the case of Hoechst Pharmaceuticals Ltd. V. State
of Bihar21 wherein it was held that “A State law would be repugnant to the Union law
when there is direct conflict between the two laws.” It is again submitted that in the
case of State of Maharashtra v. Bharat Shanti Lal Shah22 “In such situation the
provisions enacted by Parliament and State Legislature cannot unitedly stand and the
State law will have to make the way for the Union Law. Once it is proved and
established that the State law is repugnant to the Union law, the State law would
become void but only to the extent of repugnancy.”

In light of Art. 254(1) of the Constitution and the above submissions, Maharashtra
State Amendment being a State legislation is repugnant/ inconsistent to S. 438 of
CrPC, a Central legislation after the recent amendment of 2018 and therefore the state
legislation shall be void only to the extent of repugnancy i.e. for S. 438 only, allowing
central legislation to prevail over the instant case. It is argued by the counsel that
though S. 254(2) initially forms an exception to S. 254(1) but the proviso which is
added onto later in a way reaffirms the supremacy of the central laws over the state
laws.

21
(1983) 4 SCC 45.
22
(2008) 13 SCC 5.

20
 MEMORIAL ON BEHALF OF THE PETITIONER

The counsel, therefore, states that the Central Law w.r.t. S. 438 of CrPC will prevail
in the instant case which after 2018 amendment restricts the grant of anticipatory bail
in cases under S. 376(3) of IPC, 1860.
It is further argued by the counsel that since the central law will prevail in the instant
case, it becomes necessary to hold S. 438 of CrPC unjustifiable to allow the
petitioner to enjoy the benefit of anticipatory bail.

II.2 Section 438(4) of CrPC is an absolute restriction and hence unnecessary

It is argued by the counsel that Section 438(4) of CrPC is an absolute restriction on
the applicant from applying for an anticipatory bail. In the instant case, by virtue of
the said Section, the petitioner is not even permitted to file an application for
anticipatory bail.

The reason behind S. 438(4) is complete abolition of anticipatory bail in heinous and
grave offences, such as, rape which forms an absolute restriction and does not allow
the case to be decided upon the conditions or facts and circumstances. It may then be
so argued by the counsel that anticipatory bail in cases of S. 376(3) of IPC even prior
to the amendment was not granted in all cases but only granted upon the fulfilment of
the conditions and subject to reasonable restrictions.
It is submitted that the real intention behind the insertion of S. 438 in the Code of
Criminal Procedure, 1973 for the first time was laid down in the 41 st Law
Commission Report that stated: “Apart from false cases, where there are reasonable
grounds for holding that a person accused of an offence is not likely to abscond, or
otherwise misuse his liberty while on bail, there seems no justification to require him
first to submit to custody, remain in prison for some days and then apply for bail.” 23 It
is stated by the counsel that from a plain reading of the 41 st Law Commission Report,
it becomes quite evident that anticipatory bail was never made absolute but was
subject to reasonable conditions since the time of its recommendation.
The counsel, herein, submits that the 48th Law Commission Report with the
introduction of the anticipatory bail provision simultaneously added conditions for its
grant. The Report states: “The Bill introduces a provision for the grant of anticipatory
bail. This is substantially in accordance with the recommendation made by the

23
Vol. V, Para 39.9.

21
 MEMORIAL ON BEHALF OF THE PETITIONER

previous Commission. We agree that this would be a useful addition, though we must
add that it is in very exceptional cases that such a power should be exercised.
We are further of the view that in order to ensure that the provision is not put to
abuse at the instance of unscrupulous petitioners, the final order should be made only
after notice to the Public Prosecutor. The initial order should only be an interim
one. Further the relevant Section should make it clear that the direction can be issued
only for the reasons only for reasons to be recorded, and if the Court is satisfied that
such a direction is necessary, in the interests of justice.
It will also be convenient to provide that notice of the interim order as well as of the
final orders will be given to the Superintendent of Police forthwith.” 24
The counsel, therefore, argues that with the introduction of S. 438 of CrPC,
simultaneous conditions to which it would be subjected were also introduced.
It is further argued by the counsel that S. 438(1) itself provides for four conditions
upon the fulfilment of which the Judges would decide whether to grant/not to grant
anticipatory bail and S. 438(2) provides for the post-grant conditions upon the
fulfilment of which the anticipatory bail would continue.
It is therefore reiterated for the purpose of emphasis that anticipatory bail is
conditional upon fulfilment of the above conditions and is not considered to be
absolute and therefore there are already reasonable restrictions laid down in S. 438(1)
in granting of anticipatory bail. It is again argued that the Section itself involves the
Judge‟s application of mind upon deciding as to whether anticipatory bail is to be
granted or not and therefore it can be inferred that in deciding the question of granting
anticipatory bail the circumstances and facts of each case are to be taken into
consideration. It is again argued that the Section does not provide for granting of
anticipatory bail considering it to be a non-bailable offence only but also takes the
above mentioned four conditions into rumination.
It is again submitted that in the case of Gurbaksh Singh Sibbia v. State of
Punjab25ten parameters were laid down to be taken into consideration while dealing
with anticipatory bail.

24
Para 31.
25
(1980) 2 SCC 565.

22
 MEMORIAL ON BEHALF OF THE PETITIONER

In support of the above arguments, it is submitted that in Adri Dharam Das v. State
of West Bengal26 it was held that the power exercisable under Section 438 is
extraordinary and is exercised only in exceptional cases where it appears that the
person may be falsely implicated or where there are reasonable grounds for holding
that a person accused of an offence is not likely to otherwise misuse his liberty. It is
again submitted that in the case of Pravin Ghai Kashiram Bhai Patel v. State of
Gujarat27 the Supreme Court held that each case of anticipatory bail has to be
considered on its own merits and no straight jacket formula can be laid down for
universal application for granting anticipatory bail. It is again submitted that in the
case of Jai Prakash J Singh v. State of Bihar28 it was held that anticipatory bail
being an extra ordinary privilege should be granted only in exceptional circumstances
depending upon the various conditions as laid down under S. 438(1). It is again
submitted that in the case of Sajjan Kumar v. State29 it was held that the basic rule is
bail and not jail except where there are circumstances suggestive of the applicant
fleeing from justice or throttling the course of justice. It is again submitted by the
counsel that in the case of Savitri Agrawal v. State of Mahrashtra and Anr. 30 the
Supreme Court held that power to grant anticipatory bail is discretionary and wide
discretion is conferred by Section 438 and it cannot be put down in strait jacket rules
for universal application.

It is therefore argued in light of the above authorities, that restrictions prevailed while
granting anticipatory bail in pre-2018 amendment era, making Section 438(4)
unnecessary and wrong to completely deny the right of anticipatory bail, taking away
the importance of the restrictions and conditions that are inherently there in Section
438(1).

The counsel, therefore, humbly concludes that the amendment is needless and is an
unnecessary restriction on the petitioner. The petitioner is denied of an opportunity to
apply, be heard and get his case evaluated on the aforementioned conditions.

26
2005 SC 1706.
27
(2010) 4 SC 3867.
28
(2012) 2 SC 2101.
29
(1991) SC 645.
30
(2009) 4 SC 4290.

23
 MEMORIAL ON BEHALF OF THE PETITIONER

II.3 Section 438(4) of CrPC inclusive of S. 376(3) of IPC violates the

Fundamental Rights of the Constitution of Indora and hence unconstitutional

Section 438(4) of CrPC, 1973 violates the Fundamental Rights of the Constitution of
Indora in terms of Articles 14, 15, 19 and 21.

Violation of Articles 14 & 15

The Criminal Law Amendment Act, 2018 inserted sub-section (3) in S. 376 of IPC,
1860 wherein punishment for rape of minor girls aged below 16 years has been
increased to a minimum of 20 years and a maximum of life imprisonment and fine.

The said Amendment inserted sub-section (4) in S. 438 of CrPC, 1973 wherein
anticipatory bail in cases of S. 376(3) amongst other Sections of IPC has been
completely removed.

It is submitted by the counsel that the instant case falls under S. 376(3) of IPC and by
virtue of S. 438(4) of CrPC, the petitioner in the instant case is not entitled to make an
application for anticipatory bail.

It is submitted by the counsel that unlike IPC, 1860, The Protection of Children From
Sexual Offences Act, 2012 (POCSO) is gender neutral as it comprises offences and
thereof punishments for both men and women. However no amendment has been
brought in POCSO, 2012 with respect to the increase in punishment for sexual
offences.

It, therefore, leaves the counsel to infer that S. 438(4) is a gender-biased provision
favouring women, in the sense, that if sexual offence is committed by women of a boy
aged below 16 years then that case would fall u/s 8 of POCSO, 2012 giving lesser
punishment to that woman for the same grievous offence of rape. However, if the
same grievous offence of rape is committed by a man of a girl aged below 16 years as
in the instant case, then that case would fall under S. 376(3) of IPC, 1860 giving more
punishment to that man for the same offence. The counsel further argues that in the
former case, the woman is entitled to anticipatory bail as her case will fall under
POCSO, 2012 and S. 438(4) of CrPC, 1973 does not lay down any restriction for
matters falling under POCSO, 2012. However, in the latter case, the man is not
entitled to anticipatory bail as his case will fall under S. 376(3) of IPC, 1860 and S.

24
 MEMORIAL ON BEHALF OF THE PETITIONER

438(4) of CrPC, 1973 lays down restriction for matters falling under S. 376(3) of IPC,
1860.

In light of the above arguments, it is submitted that S. 438(4) favours women by not
restricting them from applying for anticipatory bail while disfavours men by
restricting them from applying for anticipatory bail.

It is, therefore, argued that the amendment in S. 438 by the Criminal Law Amendment
Act, 2018 is a violation of Art. 15(1) of the Constitution as it discriminates on the
basis of sex alone. The counsel further argues that violation of Article 14 is also
attracted as Article 15(1) expresses a particular application of the general principle of
equality embodied in Art. 14. The counsel submits that Art. 14 permits reasonable
classification and for the purpose of determining the validity of a classification, the
counsel would like to rely upon the case of K. Thimmappa v. Chairman, Central
Board of Directors, SBI31-

1. The classification must be founded on an intelligible differentia; and

2. It must have a rational nexus with the object sought to be achieved by the
impugned law.

The counsel submits that the combined effect of Arts. 14 and 15(1) is that S. 438(4) is
an unequal provision favouring women; the inequality must be based on some
reasonable ground (Art. 14) and that due to Art. 15(1) religion, race, caste, sex or
place of birth alone is not and cannot be a reasonable ground for discrimination and
since S. 438(4) discriminates on the ground of sex alone, it is not a reasonable ground
for discrimination and hence violative of Art. 14.
It is submitted that gender bias in any form is opposed to constitutional norms as held
in the cases of Anuj Garg and others v. Hotel Association of India and others 32and
Charu Khurana and others v. Union of India and others. 33
S. 438(4) of CrPC, 1973, being a discriminatory provision and violative of the
petitioner‟s Fundamental Rights under Articles 14 and 15 is unconstitutional and

31
(2001) SC 467.
32
(2008) 3 SCC 1.
33
(2015) 1 SCC 192.

25
 MEMORIAL ON BEHALF OF THE PETITIONER

thereby unjustifiable in restricting the grant of anticipatory bail to the petitioner in the
instant case.

Violation of Articles 19 and 21

It is submitted by the counsel that the legal intention behind the incorporation of S.
438 of CrPC, 1973 was to recognize the importance of personal liberty and freedom
in a free and democratic country along with the principle of presumption of
innocence. The counsel submits that a careful analysis of the Section reveals and
makes it clear that the legislature was keen to ensure respect for personal liberty as it
allows a person apprehending arrest to apply for anticipatory bail and immediately on
arrest be released on the said bail without having to spend time in police custody.
Therefore, it is argued by the counsel, keeping in view of the legal intention behind S.
438, that a provision restraining anticipatory bail would be in complete violation of
the Fundamental Rights under Article 21 and Article 19.
The Chambers‟ Twentieth Century Dictionary defines „liberty‟-
“Freedom to do as one pleases, the unrestrained employment of natural rights, power
of free chance, privileges, exemption, relaxation of restraint, the bounds within which
certain privileges are enjoyed, freedom of speech and action beyond ordinary
civility.”
There are two rights that are secured by Article 21- i) Right to Life, and ii) Right to
personal liberty.
It is argued by the counsel that liberty also includes freedom from arrest which can be
substantiated by placing reliance on the case of A.K. Gopalan v. State of
Madras34that defines „personal liberty‟ in a broad and narrow sense. In the wider
sense it only includes immunity from arrest and detention but also freedom of speech,
association, etc. In the narrow sense, it means immunity from arrest and detention.
It is further submitted that Article 19 of the Constitution of Indora averts to freedom
and it enumerates certain rights regarding individual freedom. These rights are vital
and most important freedoms which lie at the very root of liberty.

34
(1950) SC 27.

26
 MEMORIAL ON BEHALF OF THE PETITIONER

It is again submitted that in the case of Maneka Gandhi v. Union of India35 the Court
expanded the scope of „personal liberty‟ under Article 21 to include all possible rights
mentioned under Article 19.
It is, therefore, argued by the counsel that violation of Article 21 is inclusive of
violation of Article 19 of the Constitution of Indora.
It is submitted that in the case of Gurbaksh Singh Sibbia v. State of Punjab36the
Court held that S. 438 is a procedural provision which is concerned with the personal
liberty of the individual, who is entitled to the benefit of the presumption of innocence
since he is not, on the date of his application for anticipatory bail, convicted of the
offence in respect of which he seeks bail. An over-generous infusion of constraints
and conditions which are not to be found in Section 438 can make its provisions
constitutionally vulnerable since the right to personal freedom cannot be made to
depend on, compliance with unreasonable restrictions. The Constitution Bench in
this case emphasized that provision of anticipatory bail enshrined in Section 438 of
the Code is conceptualized under Article 21 of the Constitution which relates to
personal liberty. Therefore, such a provision calls for liberal interpretation of Section
438 of the Code in light of Article 21 of the Constitution.
It is again submitted that in the case of Maneka Gandhi v. Union of India 37it was
held that “in order to meet the challenge of article 21of the Constitution, the
procedure established by law for depriving a person of his liberty must be fair, just
and reasonable. Section 438, in the form in which it is conceived by the legislature, is
open to no exception on the ground that it prescribes a procedure which is unjust or
unfair.”
It is again submitted that in the case of Teru Majhi and Ors. v. State of West Bengal
and Ors.38 it was held that a right to move court against an apprehended arrest was a
right or a remedy emerging from Article 21 of the Constitution of Indora.
In light of the above submissions and arguments, it is humbly submitted by the
counsel that S. 438 being based on Art. 21 inclusive of Art. 19 of the Constitution, if
denied shall violate the fundamental rights of the petitioner in the instant case. Hence,
S. 438(4) of CrPC, 1973 is unconstitutional in terms of Arts. 19 and 20.

35
(1978) 1 SCC 248.
36
(1980) 2 SCC 565.
37
Supra 17
38
(2015) SC 1017.

27
 MEMORIAL ON BEHALF OF THE PETITIONER

II.4 S.438 (4) of CrPC is erroneous in restricting the powers of Session Court and
High Court to grant anticipatory bail

It is humbly submitted that the insertion of sub-clause 4 in S.438 of CrPC is wrong in

putting absolute restriction on the powers of High Court and Sessions Court to grant
the anticipatory bail.

It is humbly argued that the amplitude of judicial discretion which is given to the
High Court and the Court of Sessions, to impose such conditions as they may think fit
while granting anticipatory bail, should not be cut down, by reading into the statute
conditions which are not to be found therein like those evolved by the High Court. It
is again argued that the High Court and the Court of Session to whom the application
for anticipatory bail is made ought to be left free in the exercise of their judicial
discretion to grant bail if they consider it fit so to do on the particular facts and
circumstances of the case and on such conditions as the case may warrant.

In Gurbaksh Singh v. State of Punjab,39 it was said that the legislature conferred a
wide discretion on the High Court and the Court of Session to grant anticipatory bail
because it evidently felt, firstly, that it would be difficult to enumerate the conditions
under which anticipatory bail should or should not be granted and secondly; because
the intention was to allow the higher courts in the echelon a somewhat free hand in
the grant of relief in the nature of anticipatory bail. That is why, Section 438(1) uses
the language that the High Court or the Court of Session "may, if it thinks fit" direct
that the applicant be released on bail. Sub-section (2) of Section 438 is a further and
clearer manifestation of the same legislative intent to confer a wide discretionary
power to grant anticipatory bail. It provides that the High Court or the Court of
Session, while issuing a direction for the grant of anticipatory bail,"may include such
conditions in such directions in the light of the facts of the particular case, as it may
think fit", including the conditions which are set out in clauses (i) to (iv) of sub-
section (2). The proof of legislative intent can best be found in the language which the
legislature uses. Ambiguities can undoubtedly be resolved by resort to extraneous aids
but words, as wide and explicit as have been used in Section 438, must be given their

39
(1980) 3 SCR 383.

28
 MEMORIAL ON BEHALF OF THE PETITIONER

full effect, especially when to refuse to do so will result in undue impairment of the
freedom of the individual and the presumption of innocence.
It is again argued that generalizations on matters which rest on discretion and the
attempt to discover formulae of universal application when facts are bound to differ
from case to case frustrate the very purpose of conferring discretion. No two cases are
alike on facts and therefore, Courts have to be allowed a little free play in the joints if
the conferment of discretionary power is to be meaningful. There is no risk involved
in entrusting a wide discretion to the Court of Session and the High Court in granting
anticipatory bail because, firstly these are higher courts manned by experienced
persons, secondly their order are not final but are open to appellate or revisional
scrutiny and above all because, discretion has always to be exercised by courts
judicially and not according to whim, caprice or fancy. On the other hand, there is a
risk in foreclosing categories of cases in which anticipatory bail may be allowed
because life throws up unforeseen possibilities and offer new challenges. Judicial
discretion has to be free enough to be able to take these possibilities in its stride and to
meet these challenges.

In Kartar Singh v. State of Punjab40, it was held that though there is any statutory bar
on High Court to grant bail, it can be said that the High Court has jurisdiction under
Article 226 of Constitution even in such cases.

It is further argued that at times when misuse of law has come under the strict scrutiny
of the judiciary, the Courts by way of interpretation have devised alternative remedies
for providing relief to the accused and therefore discretion is required to be given to
the Courts.

It is, therefore, submitted that in Hema Mishra v. State of U.P &Ors41., the Supreme
Court held that in several cases it has categorically ruled that despite statutory bar
against the grant of anticipatory bail, a constitutional court cannot be barred from
exercising its jurisdiction to grant relief to the accused.

40
(1994) 3 SCC 569.
41
(2014) 4 SCC 453.

29
 MEMORIAL ON BEHALF OF THE PETITIONER

In Subhash Kashinath Mahajan v. State of Maharashtra 42, the Court observed

that Section 18 of the Atrocities Act gives a vision, direction and mandate to the Court
as to the cases where the anticipatory bail must be refused, but it does not and it
certainly cannot whisk away the right of any Court to have a prima facie
judicial scrutiny of the allegations made in the complaint.

Therefore, in light of the above submissions and arguments, it is humbly concluded

that discretion ought to be permitted to remain in the domain of discretion, to be
exercised objectively and open to correction by the higher courts. The safety of
discretionary power lies in this twin protection which provides a safeguard against its
abuse.

III. The Petitioner is entitled to get anticipatory bail

The petitioner is entitled to get anticipatory bail under S. 438 of CrPC, 1973 because:
firstly, petitioner‟s case falls within the ambit of S. 438 of CrPC, 1973; secondly,
petitioner has presumption of innocence until proven guilty beyond reasonable doubt;
and thirdly, good reputation of the petitioner does not permit rejection of anticipatory
bail.

III.1 Petitioner’s case falls within the ambit of S. 438 of CrPC, 1973

It is humbly submitted by the counsel that the petitioner‟s case fits into the ambit of
Section 438(1) of CrPC, 1973. It is again submitted that one of the pre-conditions in
granting of anticipatory bail as laid down by S. 438(1) is that the applicant must have
reason to believe that he may be arrested on accusation of having committed a non-
bailable offence. It is further submitted that the Court while deciding on whether to
grant anticipatory bail or not takes into consideration of four conditions, upon which
the case is evaluated, namely,

(i) The nature and gravity of accusation

(ii) The antecedents of the applicant including the fact as to whether he has
previously undergone imprisonment on conviction by a Court in respect of
any cognizable offence

42
(2018) 6 SCC 454.

30
 MEMORIAL ON BEHALF OF THE PETITIONER

(iii) The possibility of the applicant to flee from justice

(iv) Where the accusation has been made with the object of injuring or
humiliating the applicant by having him so arrested.

It is argued in light of the above submissions that the petitioner in the instant case is
entitled to make an application for anticipatory bail as he has been alleged to have
committed a non-bailable offence i.e. rape for which he has sufficient reason to
believe that he may be arrested as FIR has already been lodged in his name. The
counsel, therefore, argues that the petitioner‟s case conforms to the above-mentioned
four conditions as enshrined under S. 438(1) in the following manner:

(i) It is argued that the accusation on the petitioner of committing rape of a

minor is not that grave to reject him from receiving anticipatory bail. In
order to prove this argument the counsel would like to argue and thereby
rely on precedents where anticipatory bail has been granted in rape cases
of minor. It is, therefore, submitted that in the case of Rohoni v. The State
of Karnataka43 the High Court of Karnataka held that having regard to the
specific role attributed towards these petitioners, there is no impediment to
grant anticipatory bail in case of rape of a minor for a limited period and
accordingly the petition is allowed granting them anticipatory bail for a
period of one month. It is again submitted that in the case of Bhoori v. The
State of Madhya Pradesh 44 the High Court of Madhya Pradesh with
regard to the facts and circumstances of the case considered it to be fit to
grant anticipatory bail to the applicant in case of rape of a minor. In light
of the above submissions, it is, therefore, argued by the counsel that
anticipatory bail of the petitioner cannot be rejected on the prima facie
nature or gravity of the accusation as the same has been granted in the
above two cases of rape of a minor. Hence, the instant accusation cannot
be held to be more grave or serious.
(ii) It is argued by the counsel that there has been no allegation on the
antecedents of the petitioner including the fact as to whether he has
previously undergone imprisonment on conviction by a Court in respect of

43
(2016) SCC 5115.
44
(1993) MPLJ 197.

31
 MEMORIAL ON BEHALF OF THE PETITIONER

any cognizable offence and hence the petitioner cannot be rejected

anticipatory bail on the basis of this condition.
(iii) It is again argued by the counsel that the petitioner has no intention of
absconding or fleeing from justice but rather is willing to join investigation
and hence cannot be rejected anticipatory bail. It is further argued that
nothing was suggested from a plain reading of the complaint that the
petitioner is likely to flee from justice and therefore, pre-arrest bail
according to the counsel can be safely acceded to. It is again argued that in
absence of antecedents of the petitioner, it is likely for him to not take
advantage of the order of anticipatory bail to flee from justice as held in
the case of Gudikanti Narasimhulu v. Public Prosecutor45. It is,
therefore, submitted that in the case of Satish v. State of Haryana46 the
Supreme Court granted anticipatory bail to the petitioner subject to the
condition that he will join investigation as and when required. It is again
submitted that in the case of Siddharam Satlingappa Mhetre v. State of
Maharshtra47it was held that where the court is of the considered view
that the accused has joined investigation and he is fully cooperating with
the investigation agency and is not likely to abscond, in that event,
custodial interrogation should be avoided. It is again submitted that in the
case of Shibram Bhowmick v. State of West Bengal48 prayer for pre-arrest
bail was allowed subject to the petitioner making himself available for
interrogation by the Investigating agency as and when required. It is again
submitted that in the case of Ashok Kumar v. State49 the Court granted
anticipatory bail with the condition that the petitioner shall join the
investigation as and when required and that the petitioner shall not leave
the country without the prior permission of the concerned court.
Considering all the above submissions, the counsel would like to argue
that anticipatory bail has been granted in all cases where the applicant had

45
(1978) 1 SCC 240; Gurcharan Singh v. State (Delhi Admn), (1978) 1 SCC 118.
46
(2012) 4 SCC 510.
47
(2011) 1 SCC 694.
48
(2011) 3 CHN 650.
49
(2014) SCC 3995.

32
 MEMORIAL ON BEHALF OF THE PETITIONER

no intention of fleeing away from justice and accordingly, in the instant

case the petitioner is entitled to enjoy the benefit of anticipatory bail.
(iv) In view of the above three conditions, the petitioner proves to be entitled to
get anticipatory bail. It is therefore, argued by the counsel that considering
no allegation as to antecedents of the petitioner and his fleeing away from
justice, it can be safely concluded that the accusation has been made with
the object of injuring or humiliating the petitioner by having him so
arrested.

It is again submitted that while granting anticipatory bail under S. 438(2), the Court
further considers the following conditions:

(i) The person shall make himself available for interrogation by a police
officer as and when required
(ii) The person shall not directly or indirectly, make any inducement, threat or
promise to any person acquainted with the facts of the case so as to
dissuade him from disclosing such facts to the Court or to any police
officer
(iii) The person shall not leave India without the previous permission of the
Court
(iv) Such other condition as may be imposed under sub-section (3) of Section
437.

It is argued that the petitioner is willing to comply with the post anticipatory bail
conditions and hence the petitioner should be granted conditional pre-arrest bail.

III.2 Presumption of innocence until proven guilty beyond reasonable doubt

It is argued by the counsel that the petitioner is alleged to have committed rape and is
not proved to have committed rape and unless he is proved to have committed rape
beyond reasonable doubt, the petitioner enjoys the benefit of presumption of
innocence as it is one of the fundamental principles of criminal jurisprudence. It is
submitted by the counsel that under the Indian criminal jurisprudence, the accused has
two fundamental protections available to him in a criminal trial i.e. he is presumed to
be innocent till proved guilty and he is entitled to a fair trial and investigation. It is
argued that the petitioner in the instant case is entitled to enjoy the presumption of

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innocence as it is a presumption of law and in case of presumption of law no

discretion is left to the court and it is bound to presume the fact as proved until
evidence is given by the party interested to rebut or disprove it. It is submitted that,
keeping in mind the nature of presumption of innocence, it has been held in the case
of Chikkarangaiah v. State50 that an accused is presumed to be innocent unless such
a presumption is rebutted by the prosecution by establishing guilt of the accused
beyond reasonable doubt by producing the evidence to show him to be guilty of the
offence with which he is charged. It is again submitted that the Court in the case of
Iqbal Singh v. Meenakshi 51 held that civil cases are decided on the basis of
preponderance of probabilities while in a criminal proceeding the entire burden is on
the prosecution and proof beyond reasonable doubt has to be given.

It is again argued that presumption of innocence is a legal principle expressed in Latin

terms -eiincumbit probation qui dicit, non qui negat which means “the burden of proof
is on the one who declares, not on one who denies. It is argued by the counsel that in
the instant case the petitioner is the one denying the allegation of rape and hence
according to the maxim the burden of proof is not on the petitioner.

It is submitted by the petitioner that S. 103 of the Indian Evidence Act states that “The
burden of proof as to any particular fact lies on that person who wishes the Court to
believe in its existence, unless it is provided by any law that the proof of that fact shall
lie on any particular person”. It is argued by the counsel that in the instant case it is
the respondent who wishes the Court to believe in the existence of allegation of rape
and since there is no law that requires the proof of this fact to be given by any other
person, it is therefore the respondent upon whom the burden of proof lies.

It is again submitted that India being a signatory to Universal Declaration of Human

Rights, 1948 adopts and conforms to the various provisions of the Declaration. It is
submitted that Art. 11(1) of UDHR states that “Everyone charged with a penal
offence has the right to be presumed innocent until proved guilty according to law in a
public trial at which he has all the guarantees necessary for his defence.” It is
therefore argued by the counsel that presumption of innocence is a basic human right
as recognised by UDHR and cannot be denied to the petitioner. The counsel would

50
(2009) 17 SCC 497.
51
(2005) 4 SCC 370.

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 MEMORIAL ON BEHALF OF THE PETITIONER

herein like to rely upon judgments of Narendra Singh and Another v. State of M.P.52
and Ranjitsing Brahm Jeetsing Sharma v. State of Maharashtra53 wherein
presumption of innocence has been recognized as a human right. It is again submitted
that in the case of Mohd. Farooq Abdul Gafur v. State of Maharashtra54
“presumption of innocence was adverted to as a human right. It was further held that
unless a person is proven guilty, he should be presumed innocent as presumption of
innocence is a human right.”

It is again argued by the counsel that the petitioner is not only entitled to enjoy the
benefit of presumption of innocence but is also entitled to enjoy the benefit of
reasonable doubt since it stems out of the fundamental principle of Indian criminal
jurisprudence as held in B.N. Mutto& Another v. Dr. T.K. Nandi55. It is again
submitted that in the case of Bhagwan Singh and Others v. State of M.P.56the Court
repeated one of the fundamental principles of criminal jurisprudence that if two views
are possible on the evidence adduced in the case, one pointing to the guilt of the
accused and the other to his innocence, the view which is favourable to the accused
should be adopted. The Court observed as under- The golden thread which runs
through the web of administration of justice in criminal case is that if two views are
possible on the evidence adduced in the case, one pointing to the guilt of the accused
and the other to his innocence, the view which is favourable to the accused should be
adopted. Such is not a jurisdiction limitation on the appellate court but a Judge made
guidelines for circumspection. The paramount consideration of the court is to ensure
that miscarriage of justice is avoided." Even if there exists the slightest of doubt, the
accused is given the benefit of that slightest doubt. It is again submitted that in the
case of Siddharam Satlingappa Mhetre v. State of Maharshtra 57the Court held the
existence of reasonable doubt as a condition for granting of anticipatory bail. It states-
“Frivolity in prosecution should always be considered and it is only the element of
genuineness that shall have to be considered in the matter of grant of bail and in the

52
(2004) 10 SCC 699.
53
(2005) 5 SCC 294.
54
(2010) 14 SCC 641.
55
(1979) 1 SCC 361.
56
(2002) 4 SCC 85.
57
(2011) 1 SCC 694

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 MEMORIAL ON BEHALF OF THE PETITIONER

event of there being some doubt as to the genuineness of the prosecution, in the
normal course of events, the accused is entitled to an order of bail.” In this context,
the counsel would like to state that it is not that bad to let 10 guilty persons escape
rather than to let one innocent person get convicted.

It is again argued by the counsel that the principle of presumption of innocence is

recognised in rape cases amongst other criminal cases. In order to substantiate this
argument, the counsel would like to place reliance on the case of Joginder Singh v.
State58 wherein it was held that “there is an initial presumption of innocence of the
accused and the prosecution has to bring the offence home to the accused by reliable
evidence. It was further held that the accused is entitled to benefit of every reasonable
doubt and since in the instant case it could not be established beyond reasonable doubt
that the sexual intercourse was committed by the accused with the victim girl without
her consent or against her will the offence under Section 376 of IPC was not
established.” It is again submitted that in the case of Bhadresh Bipinbhai Sheth v.
State of Gujarat and Another59 the Supreme Court held that “a person seeking
anticipatory bail in a rape case is still a free man entitled to the presumption of
innocence”.

It is, therefore, humbly concluded by the counsel that in light of the above
submissions and arguments, in the instant case, the petitioner is entitled to both the
benefit of presumption of innocence and reasonable doubt and that rejection of these
benefits would be a violation of his human rights. The petitioner is therefore entitled
to anticipatory bail considering him to be innocent until proven guilty beyond
reasonable doubt.

(III.3) Good reputation of the petitioner does not permit rejection of anticipatory
bail

It is submitted by the counsel that in the absence of allegation as to any antecedent of

the petitioner, the petitioner enjoys a long and unblemished reputation in the society
and his impending arrest is likely to spoil that reputation at an advanced age of 25
years even before any proof of guilt is substantiated against him. It is, therefore,

58
(1974) Cri. L.J. 1379(HP)
59
(2016) 1 SCC 152

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 MEMORIAL ON BEHALF OF THE PETITIONER

vehemently argued by the counsel that the petitioner enjoying the benefit of
presumption of innocence, if not granted anticipatory bail, would lead to deterioration
of his reputation. It is again argued by the counsel that, since the petitioner is not a
hardened criminal as the respondent has not submitted any proof of his previous
criminal record and that there is no possibility of his absconding or fleeing from
justice, he is rest assured to have a good reputation in the society and is thereby
entitled to anticipatory bail. It is submitted by the counsel that in the case of Atal
Shrivastava v. State of Chattisgarh anticipatory bail was granted considering the
applicant‟s good reputation in the society in view of no proof of his previous criminal
record. It is again argued by the counsel that judicial system in India strives their best
to uphold good reputation of people as evidenced in the case of Satlingappa Mhetre60
wherein it has laid down two conditions on protection of reputation of the applicant
seeking anticipatory bail. It reads as follows- “The following factors and parameters
can be taken into consideration while dealing with the anticipatory bail:

Where the accusations have been made only the object of injuring or humiliating the
applicant by arresting him or her;

While considering the prayer for grant of anticipatory bail, a balance has to be struck
between two factors, namely, no prejudice should be caused to the free, fair and full
investigation and there should be prevention of harassment, humiliation and
unjustified detention of the accused.”

From a plain reading of the above judgment, it becomes quite evident that rejection of
anticipatory bail leading to humiliation or injury to good reputation of a person is not
permissible and hence evaluation of accusation is required.

The counsel would, therefore, like to conclude and state that the petitioner in the
instant case being a boy of good reputation as argued above is entitled to anticipatory
bail and at the same time, rejection of it would lead to degradation of his reputation.

60
Supra 57

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 MEMORIAL ON BEHALF OF THE PETITIONER

PRAYER

Wherefore in the light of the Issues Raised, Arguments Advanced and Authorities
Cited, the Hon‟ble High Court may be pleased to:

 Declare the writ petition filed as maintainable under Article 226 of the
Constitution.
 Declare that S.438 (4) of Criminal Procedure Code is ultra vires to the
Constitution of Indora and is unjustifiable.
 Issue a writ in nature of Mandamus or any other appropriate writ, providing
anticipatory bail to the Petitioner.

AND/OR

Pass any other order, direction or relief that it deems fit in the interest of
Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted.

Sd/-

Counsel for the Petitioner

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