Moot 498a Applicant

Team Code:TC37
T7
IN THE HON’BLE HIGH COURT OF DELHI
AT NEW DELHI
CRIMINAL APPELATE JURISDICTION
Criminal Bail Application No._____/2018
[APPLICATION FILED UNDER SECTION 438 OF THE

CODE OF CRIMINAL PROCEDURE, 1973]
IN THE MATTER OF:
MR. PAWAN WASON & Ors. …..APPLICANTS
VERSUS
STATE …..RESPONDENT
ON SUBMISSION TO THE HON’BLE HIGH COURT OF DELHI
WRITTEN SUBMISSIONS ON BEHALF OF THE APPLICANT

TABLE OF CONTENTS
LIST OF ABBREVIATIONS .................................................................................................... 3
INDEX OF AUTHORITIES...................................................................................................... 4
BOOKS:.................................................................................................................................. 4
CASES: ................................................................................................................................... 5
WEBSITES: ............................................................................................................................ 7
STATEMENT OF JURISDICTION.......................................................................................... 8
STATEMENT OF FACTS ...................................................................................................... 10
STATEMENT OF ISSUES RAISED ...................................................................................... 12
SUMMARY OF ARGUMENTS ............................................................................................. 13
ARGUMENTS ADVANCED / WRITTEN SUBMISSIONS................................................. 14
PRAYER .................................................................................................................................. 30
Memorial on Behalf of the Applicant

Page 2 of 30
LIST OF ABBREVATIONS
• ¶ – Paragraph
• ¶¶ – Paragraphs
• A – Accused
• AIR – All India Reporter
• Cr.P.C – Criminal Procedure Code
• IPC – Indian Penal Code
• ed. – Edition
• Ors. – Others
• p. – Page
• pp. – Pages
• P.W. – Prosecution Witness
• SC – Supreme Court
• SCC – Supreme Court Cases
• SCR – Supreme Court Reporter
• Sd/- – Signed
• Supp. – Supplement
• Vol. – Volume
• UT – Union Territory

Page 3 of 30
INDEX OF AUTHORITIES
List of Books Referred
Indian Penal Code, 1860, Bare Act by Universals
Indian Evidence Act 1872, Bare Act by Universals
Criminal Procedure Code 1973, Bare Act by Universals
Constitution of India, Bare Text by Universals
Commentary on the Code of Criminal Procedure Act, 1973 by Ratanlal & Dhirajlal
Commentary on the Indian Penal Code, 1860 by Ratanlal & Dhirajlal
The Indian Penal Code; With Commentary by W. R. Hamilton
Commentary on the Indian Evidence Act, 1872 by Ratanlal and Dhirajlal
Commentary on the Constitution of India – Volumes I and II by Durga Das Basu
Commentary on Protection of Women from Domestic Violence Act, 2005 & Rules: With Allied
Laws – V. R. Choudhari

Page 4 of 30
Cases Referred
Raghubir Singh v. State, 2007 Cr LJ 2979 (HP)
Thilari Narayana Rao v. State, 2003 Cr LJ NOC 171 (AP)
Wazir Chand v. State of Haryana, AIR 1989 SC 378
Regurry Sampath Reddy v. State, 1996 Cr LJ 1528 (AP)
Abdul Barek v. State, 1996 Cr LJ 1837 (Cal)
Pukh Raj, (1953) 3 Raj 983
Abraham, AIR 1960 Ker 236
Mohammed Sabad Ali v. Thuleswar Borah, (1954) 6 Ass 274
Allipuram Subbaih v. Brojja Venkata Subbamma, AIR 1942 Mad 672
Jogayya, (1887) 10 Mad 353,354; Vaz v. Dias, (1929) 32 Bom LR 103.
Abraham v. State of Kerala, AIR 1960 Ker 236:1960 CrLJ 910 (Kant)
Mrutunjaya Pattanaik v. Dhaneswar Dalabehora, (1990) 1 Crimes 105 (Ori).
Silvester Vaz v. Louis Dias, AIR 1930 Bom 120.
S. Gopal, 1953 CrLJ 744.
Guranditta v. Emperor, AIR 1930 Lah 344 (2): 127 IC 860 :32 CrLJ 62.
Jayakrishna Samanta v. Emperor, AIR 1917 Cal 570: 24 Cal LJ 137: 18 CrLJ 17.
Uday singh v. State of Maharashtra, AIR 2007 NOC 1640 (Bom)
Thimma v. State of Mysore, AIR 1971 SC 1871
Latif Khan v. state, 2008 Cr LJ 3246
Natturasu v. State, 1998 CrLJ 1762 (Mad)

Page 5 of 30
State of Andhra Pradesh v. Bimal Krishna Kundu, AIR 1997 SC 3589
Suresh Vasudeva v. state, 1978 Cr LJ 677(Del)
Bharat Chaudhary v. State of Bihar, (2003) 8 SCC 77 : 2003 SCC (Cri)
Adri Dharan Das v. State of West Bengal, 2005 CrLJ 1706 (SC): (2005) 2 SCC 303.
Om Prakash v. State of Punjab, 2002 (1) Crimes 124 (P&H).
Sajjan Kumar v. State, 1991 CrLJ 645, 633 (Del)
State of Karnataka v. Rangappa, 2004 CrLJ 2720 (2721) (Kant-DB).
Rajesh Utra Kumar v. State of Chattisgarh, (2003) 3 Cur Cri R 528.
Avtar Singh v. State of Haryana, 2006 CrLJ 1866 (1869, 1870) (P& H).
PG Gupta v. State, (2002) 101 DLT 193.
Gaffarsah v. State of Karnataka, 1991 CrLJ 2136, 2138 (Kant).
Munna Muni Khan v. State of Rajasthan, 1996 CrLJ 831 (Raj).
Iqbal Singh v. State of Harayana, 2007 CrLJ (NOC) 243 (P&H).

Page 6 of 30
Website Referred
www.courtnic.nic.in
www.judis.nic.in
www.westlaw.com
www.indiankanoon.com
www.manupatra.com
www.supremecourtofindia.nic.in

Page 7 of 30
STATEMENT OF JURISDICTION
The applicant has approached the Hon’ble High Court of Delhi under Section 438 of the Code of
Criminal Procedure, 1973 which reads as under:
438. Direction for grant of bail to person apprehending arrest.
(1) When any person has reason to believe that he may be arrested on an accusation of having
committed a non- bailable offence, he may apply to the High Court or the Court of Session for a
direction under this section; and that Court may, if it thinks fit, direct that in the event of such
arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may
include such conditions in such directions in the light of the facts of the particular case, as it may
think fit, including-
(i) a condition that the person shall make himself available for interrogation by a police officer as
and when required;
(ii) a condition that 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) a condition that 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, as if the bail
were granted under that section.

Page 8 of 30
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station
on such accusation, and is prepared either at the time of arrest or at any time while in the custody
of such officer to give bail, be shall be released on bail; and if a Magistrate taking cognizance of
such offence decides that a warrant should issue in the first instance against that person, he shall
issue a bailable warrant in conformity with the direction of the Court under sub-section (1).

Page 9 of 30
STATEMENT OF FACTS
1. That Mrs. Neelam Wason (hereafter referred to as the Complainant), aged – 23 yrs, married to
Mr. Pawan Wason on 23rd May 2016 as per Hindu Rites and Rituals, has proceeded with a
legal complaint against her husband and her In-laws.
2. That in pursuance of the same, an FIR was lodged by the Complainant (No. 91/18) at Dwarka
Police Station (PS) against her husband, Mr. Pawan Wason (hereafter referred to as Accused
No. 1), her Father-in-law, namely Anil Wason (hereafter referred to as Accused No.2), her
Mother-in-law, namely Laxmi Anil Wason (hereafter referred to as Accused No.3), and one
Mrs. Neela Kumari, the Aunt-in-law (hereafter referred to as Accused No. 4).
3. That the Complainant has been repeatedly harassed mentally and physically by Accused No.
1, 2, 3 & 4 and the said harassment has been taking place since the day of the Complainant’s
wedding ceremony as the food provided in the ceremony was deemed insufficient for Accused
No.2 & 4 and their guests.
4. That the Complainant’s father besides having incurred an expenditure of Rs.3,20,00,000/- and
providing an BMW X6, along with 100 tolas of gold as ‘STRIDHAN’ on the abovementioned
wedding ceremony was compelled and tortured to bring in more money.
5. That, since the parents of the complainant were unable to pay a sum of Rs.70,00,000/- she
had been coerced to bring in the same amount failing which she has been physically and
mentally harassed by all the four accused.
6. That accused No.3 also took away all the gold ornaments presented to the Complainant at the
time of the Wedding.
7. That accused no.2 and 4 in collusion, to malign the character of the complainant and her family,
picked petty fights with her, sent her back to her maternal house and categorically warned the
father to keep a check at the misdemeanour, ill conduct and misbehaviour of their daughter.
8. That the complainant’s further asserts that Accused No.1 has been physically abusing her as
he found out about her alleged affair in April 2017 with one Mr. Pankaj, brutally beat her up
and assassinated her character as he believed complainant maintained physical relations with
other men, where after he dropped the complainant back to her maternal house.

Page 10 of 30
9. That after amicable settlement between her father and her in-laws, she was taken back to her
matrimonial house on the condition that she would give in writing that she would not commit
suicide. The Complainant alleged that her after her refusal of the same, she was sent back to
her maternal house and was told to stay away from Accused No. 1.
10. That it is further averred by the Complainant that in May 2017, the Accused, fed up with her
constant threats to commit suicide, filed a non-cognizable case against the Complainant with
the Dwarka PS and after settling the dispute in the PS, the complainant was brought back to
her matrimonial house.
11. That it is further alleged that due to constant disputes and petty arguments between the
Complainant and her In-laws, she was asked to shift out where after the complainant and
Accused No. 1 rented a flat in Dwarka Sector 12.
12. That it is reiterated by the Complainant that she would be beaten up on several occasions as he
deemed the complainant unchaste who indulged with many other men, also asserts that she had
been abused by Accused no.1 who also threatened to kill her on 6th Dec 2017 as she insisted
on going to her maternal house to attend her Niece’s Birthday.
13. That the complainant stated that after unrequited recurrent quarrels between the couple, the
Accused decided to break all ties with the Complainant after which she was forcefully driven
back to her maternal house and thrown off at Najafgarh Road on 25th December 2017 at 10.00
a.m.
14. That the complainant submitted that about 4.00.p.m. on the very same day, she received a call
from her Brother-in-Law, one Mr. Manu Anil informing her that Accused No.1 has left their
house at Palam leaving behind a letter explaining the same.
15. That subsequently, the complainant has filed an FIR on 27th March 2018 at 14.50.hrs for
offences punishable under Sections 498(A), 406, 323, 34, 504, 506 of the IPC, 1860.

Page 11 of 30
ISSUE RAISED
WHETHER THE INSTANT APPLICATION FOR ANTICIPATORY BAIL SHOULD BE
ALLOWED?

Page 12 of 30
SUMMARY OF ARGUMENTS
The applicants here argue that there wasn’t a prior concert of minds between all the accused parties.
In the present case of Mr. Pawan Wason v. State, the FIR filed by the complainant against the
accused that the complainant had been repeatedly and severely caused hurt by her husband and her
in-laws is completely baseless.
That the claims made in the complaint for violation of her physical, mental and moral integrity and
domestic violence against her is a false story just to mislead the misdeeds of the complainant
herself which is evidently clear from the contents of Para no. 9 & 10 of the Statement of facts
where it is clearly stated that there was an amicable settlement between her father and her in-laws,
where she was taken back to her matrimonial house on the condition that she would give in writing
that she would not commit suicide and on May 2017, the Accused, fed up with her constant threats
to commit suicide, filed a non-cognizable case against the Complainant with the Dwarka PS and
after settling the dispute in the PS, the complainant was brought back to her matrimonial house.
Hence, it is evidently clear that till May 2017, there were no specific grievances / complaints
against the accused.
From the above, it may be concluded the allegations made against the accused are unjustifiable.
The accused has not committed any of the offences as alleged in the complaint under Sections
498(A), 406, 323, 34, 504, 506 of the IPC, 1860. Denying anticipatory bail from the accused will
certainly infringe the Fundamental Right to Life and Personal Liberty of the accused guaranteed
under Article 21 of the Constitution of India and principles of natural justice.

Page 13 of 30
ARGUMENTS ADVANCED / WRITTEN SUBMISSIONS
• The allegations made against the accused are totally false, frivolous, baseless and
unjustifiable.
Section 34:
When a criminal act is done by several persons, in furtherance of the common intention of
all, each of such persons is liable for that act in the same manner as if it were done by him
alone.
Principle –
As stated in a Supreme Court case:
In case of S. 34, it is well established that a common intention presupposes prior concert. It
requires a pre-arranged plan because before a man can be vicariously convicted for the criminal
act of another, the act must have been done in furtherance of the common intention of all of them.1
Accordingly, there must have been prior meeting of the minds. Several persons can simultaneously
attack a man. Each can have the same intention, that is, intention to kill, and each can individually
inflict a separate fatal blow and yet none would have the common intention required by the section
because there was no prior meeting of the minds to form a pre-arranged plan.2
Therefore, to apply S. 34, apart from the fact that there should be two or more accused, two factors
must be established:
(i) Common intention and;

(ii) Participation of the accused in the commission of an offence.
If a common intention is proved but no overt act is attributed to the individual accused, S.34 will
be attracted as essentially it involves vicarious liability but if participation of the accused in the
1
Pandurang v. State of Hyderabad, AIR 1955 SC 216: 1955 CrLJ 572.
2
Mehbub Shah v. Emperor, AIR 1949 PC 118 (120-121).

Page 14 of 30
crime is proved and a common intention is absent, S.34 cannot be invoked. In every case, it is not
possible to have direct evidence of a common intention. It has to be inferred from the facts and
circumstances if each case.
Common Intention-
To invoke S. 34, prosecution has to establish that criminal act was committed in concert pursuant
to a pre-arranged plan. Distinction between common intention and similar intention should be
borne in mind although the dividing line is rather thin.3 But a distinct previous plan is not necessary
for a charge under S. 34. Section 34 does not create a distinct offence. It only lays down the
principle of joint criminal liability. The necessary condition for the application of S.34 are common
intention to commit an offence and participation by all the accused in doing act or acts in
furtherance of the offence; that is to say, if two or more persons had common intention to commit
murder and they had participated in the acts done by them in furtherance of that common intention.
If these two ingredients are established, all the accused would be liable for the said of the offence;
that is to say, if two or more persons had common intention to commit murder and they had
participated in the acts done by them in furtherance of that common intention, all of them would
be guilty of murder.4
In the instance case, Accused Nos. 1, 2, 3 and 4 does not have any intention of causing hurt to the
complainant in order to threaten her into giving them dowry as it is clear from the bare reading of
contents of para no. 9 & 10 of the statement of facts viz a viz FIR of a non-cognizable case filed
by the accused no.1 against the complainant to defend himself and subsequent settlement between
the parties in May 2017 at PS Dwarka. The complainant and her family members have raised all
these complaints against the accused 1, 2, 3, & 4 just to pressurize and harass the family of the
accused.
3
State v. Dharnidhar, AIR 1976 Ori 79: 42 Cut LT 29.
4
Shyam Singh v. State of U.P., 2001 CrLJ 1632 9All)

Page 15 of 30
Section 323: Whoever, except in the case provided for by section 334, voluntarily causes hurt,
shall be punished with imprisonment of either description for a term which may extend to
one year, or with fine which may extend to one thousand rupees, or with both.
The accused, who had a quarrel with his debtor over non-discharge of a loan pelted brickbats at
his house knowing that there were occupants in it, and hurt one of them who was under medical
treatment for ten days, it was held, that the accused should be convicted under Section 323 and not
under Section 326, as the hurt caused was the natural and probable consequence of his act.5
Accused persons came with lathies and assaulted the victim and witnesses stated that main grouse
between the parties was regarding irrigation of fields. The occurrence had taken place in the heat
of passion due to sudden quarrel, injuries caused were non- vital parts and there was no intention
to cause death. It was held that conviction under Sections 323/325 read with Section 34 was proper.
SUDDEN QUARREL-
The accused, a shopkeeper, in a sudden quarrel hit his wife on the head with an iron weight of 200
grams which resulted in her death. The medical evidence showed that the injury was of simple
nature and there was no evidence that the deceased died of shock caused by the injury. He was
held liable only under Section 323, I.P.C. and not under section S. 304. I.P.C. 6The accused in a
case during taking supper at night excited by the wearing of a silver ear ring by his wife who had
explained that it was not gifted by her alleged paramour but bought by herself, struck her at
abdomen and it was in evidence that the lady had been suffering from internal complaints and
fever and she expired next morning, it was held that the offence comes not under Section 304,
I.P.C. nor Section 302, I.P.C. but Section 323, I.P.C.7So also where the wife attacked the husband
with a brick causing multiple injuries resulting in his death but according to medical evidence the
injuries were of a simple nature and were not sufficient in the ordinary course of nature to cause
death, it was held that the accused wife could not be convicted under S. 302 I.P.C. Her conviction
was accordingly changes to one under S. 323 I.P.C. accused accompanied by a few officers of the
5
Emperor v. Maung Po Nyan, AIR 1916 Low Bur 98: 17 CrLJ 465.
6
P.P. v. N.S. Murthy, 1973 CrLJ 1238 (AP).
7
Emperor v. Jiwa Arma, 3 CrLJ 1866 (Gau).

Page 16 of 30
Civil Court went to execute a Civil Court decree of ejection. But they were obstructed in the
process by a lady who had occupied the house and who was not a party to the decree. She alleged
to be the real tenant. The accused while forcibly removing her caused simple hurt to her. The
accused was convicted under Section 323 of the I.P.C.8
In the present case of Pawan Wason v. State, as is clear from the FIR filed by the complainant, the
claims made in the complaint for violation of her physical, mental and moral integrity and domestic
violence against her is a false story just to mislead the misdeeds of the complainant herself.
Section 406 – Whoever commits criminal breach of trust shall be punished with
imprisonment of either description for a term which may extend to three years, or with fine,
or with both.
To constitute this offence, there must be dishonest misappropriation by a person in whom

confidence is placed as to the custody or management of the property in respect of which the
criminal breach of trust is charged. The ownership or beneficial interest in the property in respect
of which the criminal breach of trust is alleged to have been committed must be in some person
other than the accused and the latter must hold it on account of some person or in some way for
his benefit.
Scope and Object –The offence consists of any of the four positive acts- 1) Misappropriation, 2)
Conversion, 3) User, 4) Disposal of property. Neither failure to account nor breach of contract,
however dishonesty, is actually and by itself the offence of criminal breach of trust.
The ingredients of the offence of criminal breach of trust are-
1- Mens Rea is an essential ingredient. 9

2- There must be entrustment, there must be misappropriation or conversion to one’s own use,
or use in violation of legal direction or of any legal contract. 10
8
Abdul Sattar v. Moti Bibi, AIR 1930 Cal 720: 127 IC 551:31 CrLJ 1223.
9
S.W. Pal v. State of Bihar (2002) SCC (CRL) 129
10
Ram Narayan v. CBI (2003) 3 SCC 641

Page 17 of 30
3- The accused was entrusted with the property or domain over it. 11
4- He dishonestly misappropriated or converted to his own use such property.
5- He dishonestly used or disposed of the property or willfully suffered any other person to
do so in failure of-
(a) Any direction of law prescribing the mode in which such trust is to be discharged, 12
or,
(b) Any legal contract made touching upon the discharge of such trust. 13
Offence under sec 405 of IPC can be said to have been committed only when all the ingredients
of that offence as defined in the statute are found to have been satisfied.
Essentials of offence of criminal breach of trust –
An offence of criminal breach of trust necessarily involves the facts of –
A – Entrustment of property, B – a dishonest misappropriation or conversion of property by agent

to his own use or C – dishonest use or disposal of the property in violation of mandate of the law
prescribing the mode in which the entrustment has to be discharged or D – Dishonest use or
disposal of the property in violation of the terms of any legal contracts either expressed or implied
regarding the discharge of the entrustment or willfully allowing some other person to do so.
To establish a charge under the section, the fact of entrustment of property as well as any or more
of the other alternative as aforesaid have to be established by the prosecution, the gist being a
dishonest intention on the part of the agent. The burden of proving such dishonest intention is on
the prosecution though however it being often difficult to get any direct evidence of intention, it
may be justifiably inferred from the attending circumstances as in the instant case. The conduct by
the accused and any false explanation given by him may also be an additional factor against him
to be taken into consideration.
11
CBI v. Duncan Agro. (1996) 5 SCC 591
12
Om Prakash Gupta v. State AIR 1957 SC 458
13
S.K. Alagh v. State (2008) 5 SCC 662

Page 18 of 30
As in the present case, the complainant claims that the accused is in possession of all of the
property given to the complainant at the time of her wedding. However, it is evident from para no.
9 & 10 of the statement of facts where the accused filed a non-cognizable case against the
Complainant with the Dwarka PS, the dispute was settled in the PS and the complainant never
mentioned that accused No.3 took away all the gold ornaments presented to the Complainant at
the time of the Wedding as all such belongings were in the possession of the complainant and it
was an afterthought allegation on the accused and his family.
Evidence – To bring home the offence under section 406, I.P.C., the ingredients of entrustment
with property, having domain over it, and the same having been misappropriated or converted to
his own use by the accused person, are required to be proved.
Section 498-A. Husband or relative of husband of a woman subjecting her to cruelty. --

Whoever, being the husband or the relative of the husband of a woman, subjects such woman
to cruelty shall be punished with imprisonment for a term which may extend to three years
and shall also be liable to fine.
Explanation - For the purposes of this section," cruelty" means-

(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide
or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;
or
(b) harassment of the woman where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable security or is on account
of failure by her or any person related to her to meet such demand.
This section reflects the anxiety to extend protection of the weaker spouse. Traditionally in any
society, a woman is subjected to the whims and caprices of man, especially when it relates to the
relationship of husband and wife.
Section 498-A, I.P.C, shows that whoever being the husband or relative of the husband of a woman
subjects such woman to cruelty shall be punished with imprisonment for a term which may extend
to three years and shall be liable to fine. Clause (b) of the explanation to that section shows that
the harassment of the woman where such harassment is with a view to coercing her or any person
Page 19 of 30
related to her to meet any unlawful demand for property or valuable security or is on account of
the failure by her or any other person related to her to meet such demand would amount to cruelty
u/s 498-A.
Acquittal of accused—False Allegations
In a recent judgement IN THE HIGH COURT OF DELHI AT NEW DELHI, on 11 September

2017 the Hon’ble court expressed the following views while allowing the appeal against conviction
and acquitted the accused
Recently tendency had developed for roping in all relations of in-laws as accused persons and this
appears to be the case here too – Prosecution had failed to prove either any dowry demand by
appellants or deceased being harassed by appelants in connection with any such dowry demand so
as to prove that it was case of dowry death – Appeal Allowed14
Section 498A Explanations (a), (b) –Cruelty – Scope and ambit of Provision –
Cruelty—Scope and ambit of provision is well explained in the recent judgement of hon’ble
Supreme court of India on June 27 2018—Clause (b) is not attracted as there was no harassment
by husband with a view to coercing her to meet any unlawful demand for any property or valuable
security or on account of failure by her to meet such demand -- Appellant cannot be held guilty
of any willful conduct which was of such a nature as is likely to drive deceased to commit
suicide—First limb of Clause (a) to Expatiation under Section 498A not attracted – Permitting
first wife to enter house of deceased with new born child does not amount to cruelty within
meaning of second limb of Clause (a) to Explanation of Section 498A, IPC. 15
In the Instance case, allegations were made without any evidence, only verbal, baseless allegations
were made just to malign the character of the accused and hide the misdeeds of the complainant.
Section 504: Whoever intentionally insults, and thereby gives provocation to any other
person, intending or knowing it to be likely that such provocation will cause him to break
the public peace, or to commit any other offence, shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine or both.
14
Mohd. Aslam and ors. Vs. State (NCT of Delhi)
15
Kantilal Martaji Pandor vs. State og Gujrat & ANR.

Page 20 of 30
This section provides a remedy for using abusive and insulting language. Abusive language which
may lead to breach of the public peace is not an offence. There must be an intentional insult. Insult
which may be offered by words or conduct. If it is by words, the words must amount to something
more than mere vulgar abuse. It is not every insult that can be classified as “intentional insult”
coming within the purview of Sec 504. Mere breach of good manners does not constitute an
offence under this section.16 If the insult is of such nature that it may give provocation which might
rouse a man to act either to break or the public peace or to commit any other offence, the offence
is committed. The offence contemplated in Section 504 is a serious one. It is obviously intended
to deal with persons who are responsible for breaches of peace of the commission of offences as
those who openly abet or incite them.
The law makes punishable the insulting provocation which, under ordinary circumstances, would
cause a breach of the peace to be committed, and the offender is not protected from the
consequences of his act because the person insulted does not take the provocation in the manner
intended, or exercises self-control, or being terrified by the insult, or overpowered by the
personality of the offender, does not actually break the peace or commits another offence. In
judging whether a particular abusive language comes within the mischief of section 504, I.P.C.,
the Court has to see what the effect of the language would be used in ordinary course of events
and not how the complainant actually behaved on being abused. Merely because a man of cool
temperament did not react violently or break the peace it does not follow that no offence was
committed by the accused.
SCOPE AND OBJECT:
For an offence under S. 504, what is material is not the reaction of the complainant which might
vary according to the sensitiveness of the individual insulted but the intention of the offender to
provoke or his knowledge that he is likely to provoke the person insulted to commit an
offence.17The offence punishable under S. 504 of the I.P.C. is a distinct offence which comes under
16
Abraham, AIR 1960 Ker 236
17
Abraham v. State of Kerala, AIR 1960 Ker 236:1960 CrLJ 910 (Kant)

Page 21 of 30
the category of misdemeanors. Using foul and provocative language against any person which has
a tendency of provoking a person to commit an offence is made punishable under this section.
INSULT: Intentional insulting giving provocation to cause breach of peace is an offence answering
S. 504, I.P.C. Thus, would words used by the accused should not only give insult but also must
provoke a man to cause breach of peace or to commit any other offence, or an offence under S.504,
I.P.C.18
An insult which under ordinary circumstances would be likely to provoke the person insulted to
cause a breach of peace is within the provisions of the section although the person insulted may
have been reduced to a state of abject terror so as to render improbable that he would commit a
breach of peace.
The Court has merely to consider the standard of an ordinary reasonable man to see if the insult
offered is such as is ordinarily sufficient to arouse passions and provoke retaliation by words or
deed. If the abusive language used or insult hurled, in the ordinary circumstances are such that
they ordinarily provoke the man or woman of his or her position to commit a breach of the peace.
The mere forbearance of the person insulted being provoked is not sufficient to protect the
offender.19
If the insult hurled or abusive language used intentionally is of such a nature as would, in the
ordinary course of events, lead the person insulted to break the peace or to commit the offence
under the law, the case is not taken away from the purview of S. 504 I.P.C., merely because the
insulted person exercised self-control or being terrified by the insult, or overawed by the
personality of the offender did not actually break the peace or commit any offence. In dealing with
section 504 the Court has not to judge the temperament or the idiosyncrasies of the individual
concerned. It should try to find out what in the ordinary circumstances would have been the effect
of the abusive language used. Where there is no doubt that the abusive language used might
18
Mrutunjaya Pattanaik v. Dhaneswar Dalabehora, (1990) 1 Crimes 105 (Ori).
19
S. Gopal, 1953 CrLJ 744.

Page 22 of 30
ordinarily have resulted in broken limbs or at least in an affray and consequent breach of the peace
an offence under Section 504 is committed.
Intention of the accused to provoke break of public peace is enough to constitute u/s. 504 I.P.C. It
is immaterial whether there occurred actual break of public peace.
None of the vital conditions of Section 504 have been met with in the instance case as the Accused
never abused and tortured the complainant with an intention to break public peace and no such
incident ever occurred. Rather, the complainant herself always threatened the accused to commit
suicide.
Section 506 – Punishment for criminal intimidation -- Whoever commits the offence of
criminal intimidation shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both;
And if threat be to cause death or grievous hurt, or to cause the destruction of any property
by fire, or to cause an offence punishable with death or imprisonment for life, or with
imprisonment for a term which may extend to seven years, or to impute unchastity to a
woman, shall be punished with imprisonment of either description for a term which may
extend to seven years, or with fine, or with both.
Essential ingredients –
The offence of criminal intimidation has been defined under section 503 of IPC and Section 506
provides Punishment for the same –
1) Threatening a person with injury-

a) To his person, reputation and property; or
b) To the person, or reputation of any one in whom that person is interested.
2) The threat must be with the intent;
a) To cause alarm to that person; or
b) To cause that person to do any act which he is not legally bound to do as the means of avoiding
execution of such threat; or
c) To cause that person to omit to do act which that person is legally entitled to do as the means
of avoiding execution of such threat
In order to bring the truth before this Hon’ble court under section 506, the accused in the instant
case has pleaded:
1) (a)&(b) That the accused and his family members never threatened the complainant ;
2) (a),(b)&(c) The accused are innocent and law abiding citizens

Page 23 of 30
From the above, it may be concluded the allegations made against the accused are unjustifiable.
The accused has not committed any of the offences as alleged in the complaint under Sections
498(A), 406, 323, 34, 504, 506 of the IPC, 1860. Denying anticipatory bail from the accused will
certainly infringe the Fundamental Right to Life and Personal Liberty of the accused guaranteed
under Article 21 of the Constitution of India and principles of natural justice.
INDIAN EVIDENCE ACT
Evidence means and includes –
1) All statements which the court permits or requires to be made before it by witnesses, in relation
to matters of fact under inquiry; such statements be deemed as oral evidence.
2) All documents including electronic records produced for the inspection of the court – such
documents are called Documentary Evidence
The word ‘evidence’ would mean the testimony, whether oral, documentary, electronic records or
real, which maybe legally received in order to prove or disprove some facts in dispute.
Section 61 – the contents of documents may be proved either by primary or by secondary

evidence.
The contents of the document must be proved either by production of the document which is called
primary evidence or by copies or oral accounts of the contents, which are called secondary
evidence. Where there is documentary evidence, oral evidence is not entitled to any weight.
Section 10 –
Where there is reasonable ground to believe that two or more persons have conspired
together to commit an offence or an actionable wrong, anything said, done or written by any
of such persons in reference to their common intention, after the time when such intention
was first entertained by any of them, is a relevant fact as against each of the persons believed
to be so conspiring, as well for the purpose of providing the existence of the conspiracy as for
the purpose of showing that any such person was a party to it.

Page 24 of 30
Anything said or done in reference to common intention, is admissible. The words ‘common
intention’ signifies a common intention existing at the time when the thing was said or done or
written by one of them are relevant as evidence. This section applies to acts and declarations of
one of a body of conspirators in respect of the common design of all.
Under section 34 of the IPC, when a criminal act is done by several persons, in furtherance of the
common intention of all, each of such persons is liable for the act in the same manner as if it were
done by him alone. This section makes admissible in evidence things, actions, said or done by a
conspirator in reference to the common design.
One of the objects of law of evidence is to restrict the investigation made by the courts within the
bounds prescribed by general convenience and this object would be completely frustrated by the
admission, on all occasions, of every circumstance of either side having some remote and
conjectural probative force, the precise amount of which might itself by ascertainable only by a
long trial and a determination of fresh collateral issues, growing up in endless succession, as the
inquiry proceeds.
• The grounds on which the bail application has been filed are tenable.
Grant of bail –
Section 438, CrPC –
Who can apply for anticipatory bail?
A person apprehending arrest by magistrate remanding him to custody under section 209 can apply
for anticipatory bail under section 438.20
20
Natturasu v. State, 1998 CrLJ 1762 (Mad)

Page 25 of 30
Where the accused apprehends arrest in view of the fact that a non-bail able warrant has been
issued against him on the basis of charge- sheet filed against him, he can apply for anticipatory
bail21
A person already on bail or apprehending an anticipatory bail can’t apply for bail/anticipatory bail
in respect of the same accusation. “He” in the expression “he may apply to court” occurring in
section 438 doesn’t include a stranger or a tadbirkar or a tout of a middleman.
Presence of the petitioner (Sub sec 1B) –
The presence of an applicant seeking anticipatory bail shall be obligatory at the time of the final
hearing of the application and passing of final order by the Court, if on an application made to it
by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.
This amendment in the section will come into force from the date of its notification.
Applicability to all non-bailable offences – Section 438 applies to all non-bailable offences; it is
not confined to duly those non-bailable offences which are punishable with death or imprisonment
for life.
Applicability to cognizable and non-cognizable cases – Anticipatory bail can be granted in respect
of non-bailable offences whether they are cognizable or non-cognizable offences.
The courts have the power to grant anticipatory bail even in cases where either cognizance has
been taken or charge sheet has been filed.22
Broad circumstances for grant of bail –
Court can give direction for grant of bail under this section –
1 The provisions of this Section are an exception to the general rule and this power should be
exercised in exceptional cases
21
Supra 58
22
Bharat Chaudhary v. State of Bihar, (2003) 8 SCC 77 : 2003 SCC (Cri)

Page 26 of 30
2 The consideration governing the exercise of power under this section are materially different
from those when an application for bail is made by a person who is in custody during the
investigation or who is convicted and his appeal is pending before the High Court.
3 In an application under this section the applicant must show that he has reasons to believe he
may be arrested for a non-bailable offence and grounds for such belief must be capable of being
examined by the Court objectively and this section cannot be invoked on the basis of vague and
general allegations, as anticipatory bail is a device to secure the individual’s liberty; it is neither a
passport to the commission of crime nor a shield against any and all kinds of accusations, likely
or unlikely.
4 In disposing of an application for anticipatory bail the High Court or the Court of Session must
apply its own mind to the question and decide whether a case has been made out for granting such
relief.
5 The filing of a first information report is not a condition precedent to the exercise of the power
under this section and anticipatory bail can be granted so long as the applicant has not been
arrested.
6 An order under this section can be passed without notice to the Public Prosecutor. But such
notice must be issued forthwith and the question of bail should be re-examined thereafter in the
light of respective contentions of the parties.
7 If the proposed application appears to stem not from motives of furthering the ends of justice but
from some ulterior motive, the object being to injure and humiliate the applicant by having him
arrested, a direction for the release of the application in pre-arrest bail in the event of the arrest
should generally be made.
8 Status in life, affluence or otherwise, are hardly relevant considerations while examining the
request for granting anticipatory bail. Anticipatory bail to some extent intrudes in the sphere of
investigation of crime and the Court must be cautious and circumspect in exercising such power.
9 Some very compelling circumstances must be made out to grant anticipatory bail to a person
accused of committing murder and that too when the investigation is in progress.

Page 27 of 30
10 This section can be attracted when some influential person is the complainant against a weak
person or in the case of political rivalry between two persons if the case is instituted between two
political rivals. However there must be some indication that the allegations are false.
11 Where the allegations against the petitioners are of general nature, anticipatory bail would be
allowed.
The considerations which ought to weigh the Court while granting bail either under this section or
S. 439 is:-
1- The nature or gravity of the circumstances in which the offence is committed.

2- The position and the status of the accused with reference to the victim and the witnesses.
3- The likelihood of the accused fleeing from justice.
4- Of repeating the offence.
5- Of jeopardizing his own life being faced with a grim prospect of possible conviction in the
case.
6- Of tampering with evidence.
7- The history of the case as well as his investigation, and
8- Other relevant grounds which may apply to the facts and circumstances of a particular case.23
Anticipatory bail is not to be granted lightly, indiscriminately and in any event, that it should never
be granted in situations where it would seriously affect an investigation. While deciding the
question of anticipatory bail, the Court would not be guided by the cover of the allegations but
would look into the nature of the allegations and would decide whether a prima facie case with
which the accused can be charged is made out or not. Where custodial interrogation of the applicant
is necessary, anticipatory bail will be refused.
Without looking into the gravity of the offences, bail would not be refused merely because the
petitioner would influence the witnesses.24
23
Sajjan Kumar v. State, 1991 CrLJ 645, 633 (Del)
24
PG Gupta v. State, (2002) 101 DLT 193.

Page 28 of 30
If on the same materials, prayer for regular bail has been rejected, there can be no basis for granting
an anticipatory bail on the same materials. The grant of bail is the rule, and refusal is the
exception.25
KEEPING OUT OF REACH OF POLICE:
The mere circumstance that the petitioners are keeping themselves out of the reach of the police
is not a sufficient to deny the proper relief of anticipatory bail to them, when there is no possibility
of the absconding as they are agriculturists by profession.
In conclusion, it is humbly requested of the Court to accept the applicant an anticipatory bail so
that justice can be served.
25
RL Jalappav. Delhi Police establishment, 1989 (3) Crimes 113, 120 (Kant).

Page 29 of 30
PRAYER
In the light of the issues raised, arguments advanced and authorities cited, the counsels for the
Applicant humbly and forever pray before this Hon’ble Court to kindly:
ACCEPT THE ANTICIPATORY BAIL APPLICATION.
AND/ OR
PASS ANY OTHER ORDER THAT IT DEEMS FIT IN THE INTEREST OF JUSTICE,
EQUITY AND GOOD CONSCIENCE.
And for this the Applicant as in duty bound shall forever humbly pray.
(Counsels on behalf of the Applicant)

Page 30 of 30

Moot 498a Applicant

Uploaded by

Copyright:

Available Formats

Moot 498a Applicant

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Moot 498a Applicant

Uploaded by

Copyright:

Available Formats

Team Code:TC37

IN THE HON’BLE HIGH COURT OF DELHI

CRIMINAL APPELATE JURISDICTION

Criminal Bail Application No._____/2018

[APPLICATION FILED UNDER SECTION 438 OF THE

IN THE MATTER OF:

MR. PAWAN WASON & Ors. …..APPLICANTS

ON SUBMISSION TO THE HON’BLE HIGH COURT OF DELHI

WRITTEN SUBMISSIONS ON BEHALF OF THE APPLICANT

LIST OF ABBREVIATIONS .................................................................................................... 3

STATEMENT OF FACTS ...................................................................................................... 10

STATEMENT OF ISSUES RAISED ...................................................................................... 12

SUMMARY OF ARGUMENTS ............................................................................................. 13

ARGUMENTS ADVANCED / WRITTEN SUBMISSIONS................................................. 14

Memorial on Behalf of the Applicant

• AIR – All India Reporter

• Cr.P.C – Criminal Procedure Code

• IPC – Indian Penal Code

• P.W. – Prosecution Witness

• SCC – Supreme Court Cases

• SCR – Supreme Court Reporter

Memorial on Behalf of the Applicant

List of Books Referred

Indian Penal Code, 1860, Bare Act by Universals

Indian Evidence Act 1872, Bare Act by Universals

Criminal Procedure Code 1973, Bare Act by Universals

Constitution of India, Bare Text by Universals

Commentary on the Indian Penal Code, 1860 by Ratanlal & Dhirajlal

The Indian Penal Code; With Commentary by W. R. Hamilton

Commentary on the Indian Evidence Act, 1872 by Ratanlal and Dhirajlal

Commentary on the Constitution of India – Volumes I and II by Durga Das Basu

Memorial on Behalf of the Applicant

Raghubir Singh v. State, 2007 Cr LJ 2979 (HP)

Thilari Narayana Rao v. State, 2003 Cr LJ NOC 171 (AP)

Wazir Chand v. State of Haryana, AIR 1989 SC 378

Regurry Sampath Reddy v. State, 1996 Cr LJ 1528 (AP)

Abdul Barek v. State, 1996 Cr LJ 1837 (Cal)

Pukh Raj, (1953) 3 Raj 983

Abraham, AIR 1960 Ker 236

Mohammed Sabad Ali v. Thuleswar Borah, (1954) 6 Ass 274

Allipuram Subbaih v. Brojja Venkata Subbamma, AIR 1942 Mad 672

Jogayya, (1887) 10 Mad 353,354; Vaz v. Dias, (1929) 32 Bom LR 103.

Mrutunjaya Pattanaik v. Dhaneswar Dalabehora, (1990) 1 Crimes 105 (Ori).

Silvester Vaz v. Louis Dias, AIR 1930 Bom 120.

S. Gopal, 1953 CrLJ 744.

Uday singh v. State of Maharashtra, AIR 2007 NOC 1640 (Bom)

Thimma v. State of Mysore, AIR 1971 SC 1871

Latif Khan v. state, 2008 Cr LJ 3246

Natturasu v. State, 1998 CrLJ 1762 (Mad)

Memorial on Behalf of the Applicant

Suresh Vasudeva v. state, 1978 Cr LJ 677(Del)

Bharat Chaudhary v. State of Bihar, (2003) 8 SCC 77 : 2003 SCC (Cri)

Om Prakash v. State of Punjab, 2002 (1) Crimes 124 (P&H).

Sajjan Kumar v. State, 1991 CrLJ 645, 633 (Del)

State of Karnataka v. Rangappa, 2004 CrLJ 2720 (2721) (Kant-DB).

Rajesh Utra Kumar v. State of Chattisgarh, (2003) 3 Cur Cri R 528.

PG Gupta v. State, (2002) 101 DLT 193.

Gaffarsah v. State of Karnataka, 1991 CrLJ 2136, 2138 (Kant).