Memorial for Petitioner TABLE OF CONTENTS

TEAM CODE: RAMASWAMY

MOOT SELECTIONS 2020

Before

THE SUPREME COURT OF OZALA

Ms. QUANTISA………………………………………………………………. PETITIONER

vs.

UNION OF OZALA AND THE STATE OF ASPAR……………………. RESPONDENTS

MEMORIAL for PETITIONER

I
Memorial for Petitioner TABLE OF CONTENTS

TABLE OF CONTENTS

CONTENTS
TABLE OF CONTENTS .......................................................................................................... II

LIST OF ABBREVIATIONS ................................................................................................... V

INDEX OF AUTHORITIES....................................................................................................VI

STATEMENT OF JURISDICTION........................................................................................IX

STATEMENT OF FACTS ....................................................................................................... X

ISSUES RAISED ................................................................................................................... XII

SUMMARY OF ARGUMENTS .......................................................................................... XIII

ARGUMENTS ADVANCED ................................................................................................... 1

I. THE ADDITIONAL CONDITIONS FOR THE GRANT OF BAIL UNDER

SECTION 439A CODE OF CRIMINAL PROCEDURE OF OZALA VIOLATE THE
FUNDAMENTAL RIGHTS GUARANTEED UNDER THE OZALAN CONSTITUTION.
1

A. The additional conditions for the grant of bail under Section 439A are violative of
the Right to Equality. .......................................................................................................... 1

i. The additional conditions under Section 439A are discriminatory ........................... 1

ii. The additional conditions suffer from manifest arbitrariness. .................................... 2

a)The language of the section is irrational

..................................................................................................................................... 2

b)No adequate determining principles exist for the satisfaction of the second
condition. ..................................................................................................................... 3

c)Non-application of this section for the grant of anticipatory bail leads to arbitrary
results .......................................................................................................................... 4

B. The additional conditions for the grant of bail under Section 439A are violative of
the Right to Life and Liberty. ............................................................................................. 4

i. The additional conditions violate the right to fair trial. ............................................... 4

ii. The additional conditions are against the presumption of innocence. ....................... 5

II
Memorial for Petitioner TABLE OF CONTENTS

a) “Presumption of Innocence” is embedded in the right to life and liberty ............... 5

b)The additional conditions reverse the burden of proof

..................................................................................................................................... 5

c)The second condition defies the presumption of innocence

..................................................................................................................................... 6

iii. Additional conditions provide for unfair procedure .................................................... 6

iv. ‘Object’ of the Act cannot be made a ground to trample the right to life and liberty
7

C. The additional conditions violate the principle laid down by the courts .................... 7

II. MS. QUANTISA IS ENTITLED TO BE RELEASED ON BAIL ................................ 9

A. The principle of ‘Bail is a right and Jail is an exception’ directly applies to instant
case 9

i. The denial of bail amounted to violation of right to life and liberty. ........................ 9

a)Right to live with human dignity is one of the components of Right to life and
liberty. ....................................................................................................................... 10

ii. In Bailable offences, Bail should be given to the accused as a matter of right ...... 10

B. Ms. Quantisa should be entitled to bail even for the offence under section 308 of the
Penal Code ........................................................................................................................ 11

i. Ms. Quantisa has been falsely implicated by the police authorities under section
308. 11

a)The requirements of Section 308 of the Penal Code are not fulfilled in the present
case ............................................................................................................................ 12

b)Failure on the part of the Aspar Government to enforce the Aspar Epidemic
Diseases Regulation, 2020 ........................................................................................ 12

ii. Arguendo, even if Ms. Quantisa had the required intention under section 308, bail
should be given to her based on other factors. ................................................................... 13

C. The conditions required for the grant of bail are fulfilled in the present case .......... 13

i. The triple test used by the Courts while granting regular bail in a non-bailable
offence is qualified by Ms. Quantisa ................................................................................... 14

III
Memorial for Petitioner TABLE OF CONTENTS

PRAYER ............................................................................................................................... XIV

IV
Memorial for Petitioner LIST OF ABBREVIATIONS

LIST OF ABBREVIATIONS

& And
§ Section
A.I.R. All India Reporter
Anr. Another
Art. Article
CBI Central Bureau of Investigation
COVID Coronavirus Disease
EDA Epidemic Diseases Act
Etc. Et cetera
Hon’ble Honourable
Ibid Ibidem
i.e. id est (that means)
Ors. Others
P&H Punjab & Haryana
SCC Supreme Court Cases
US United States
vs. Versus

V
Memorial for Petitioner INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

Cases

Anil Kumar Yadav vs State (NCT) of Delhi, (2018) 12 SCC 129 ............................................ 18
Ankul Chandra v. Union of India, (1996) 6 SCC 354 ............................................................. 16
Ankush Kumar @ Sonu vs State of Punjab, (2018) SCC OnLine P&H 1259 ............. 13, 14, 17
Babua Alian Tazmul Hussain V. State of Orissa & Others, AIR 2002 SC 2393..................... 19
Bimal Kaur Khalsa vs Union Of India And Ors., AIR 1988 P H 95 ....................................... 14
Birajit Sinha V. State of Tripura, MANU/GH/0220/2004....................................................... 19
Bombay Dyening Co. Ltd. V. Bombay Action Group & Ors, AIR 2006 SC 1489.................. 20
Dataram Singh V. State of Uttar Pradesh & Another, AIR 2018 SC 980............................... 20
Emperor V. H.L. Hutchinson, AIR 1931 All 356 .................................................................... 19
Francis Coralie Mullin V. The Administrator, Union of Delhi, MANU/SC/0517/1981 ......... 20
Gudikanti Narasimhulu and Ors. V. Public Prosecutor, AIR 1978 SC 429 ..................... 20, 23
Gurcharan Singh V. State (Delhi Admn.) (1987) 1 SCC 118 .................................................. 23
Hardwari Lal V. Emperor, 33 CrJ 773 .................................................................................... 24
Indian Express Newspapers (Bombay) Private Ltd. & Ors. vs Union Of India & Ors., 1986
AIR 515 ................................................................................................................................ 18
Jai Prakash V. State (Delhi Administration), (1991) 2 SCC 32 .............................................. 22
Kalyan Chandra Sarkar V. Rajesh Ranjan, (2004) 7 SCC 528 ............................................... 24
Kanubhai V. State of Gujarat, MANU/GJ/0083/1972............................................................. 21
Konan Kodio Ganstone V. State of Maharashtra, MANU/MH/1025/2020 ...................... 21, 23
Liaqat Hussain V. Union Territory of J&K, MANU/JK/0272/2020 ....................................... 23
Mahender Chawla V. Union of India, (2019) 14 SCC 615 ..................................................... 25
Maneka Gandhi vs Union Of India, 1978 AIR 597 ........................................................... 16, 20
Mithu V. State of Punjab, AIR 1983 SC 473 ........................................................................... 20
Nikesh Tarachand Shah vs Union Of India, (2018) 11 SCC 1 ................................................ 15
Niranjan Singh and another vs Prabhakar Rajaram Kharote and others, (1980) 2 SCC 559 18
Om Prakash v. The State of Punjab, 1961 AIR 1782 .............................................................. 22
P. Chidambaram V. Central Bureau of Investigation, 2019 SCC OnLine SC 1197 ............... 24
P. Chidambaram V. Directorate Of Enforcement, (2019) 9 SCC 66 ...................................... 24
Prahlad Singh Bhati V. NCT, Delhi, AIR 2001 SC 1444 ........................................................ 24

VI
Memorial for Petitioner INDEX OF AUTHORITIES

Rajesh Kumar vs State through Government of NCT of Delhi, (2011) 13 SCC 706 ............... 17
Ram Govind Upadhyay V. Sudarshan Singh, AIR 2002 SC 1475........................................... 24
Rustom Cavasjee Cooper vs Union Of India, 1970 AIR 564 .................................................. 18
Sanjay Chandra vs CBI, (2012) 1 SCC 40 ........................................................................ 15, 24
Shayara Bano v. Union of India and others, (2017) 9 SCC 1 ................................................. 13
Siddharam Satlingappa Mhetre V. State of Maharashtra, (2011) 1 SCC 694 ........................ 20
Sidharth Vashisth alias Manu Sharma V. State of Delhi, MANU/DE/0998/2003 .................. 19
State Of Kerala etc. vs Rajesh etc., 2020 SCC OnLine SC 81 ................................................ 18
State of Rajasthan vs. Balchand, AIR 1977 SC 2447 .............................................................. 19
State Trading Corporation of India v. Commercial Tax Officer and Ors., 1963 AIR 1811 ... 12
State V. Jaspal Singh Gill, AIR 1984 SC 1503........................................................................ 23
Subbrama Ayet V. State, AIR 1953 TraCo.25 ......................................................................... 24
Sunil Batra v. Delhi Administration, (1978) 1 SCC 248 ......................................................... 16
Talab Haji Hussain V. Madhukar Purshottam Mondkar, AIR 1958 SC 376 .......................... 23
The State Of Orissa vs Mahimananda Mishra, (2018) 10 SCC 516 ....................................... 13
Union of India and Anr. vs Sanjeev Deshpande, AIR 2014 SC 3625 ..................................... 17
Union of India V. S. Bhagwandas, MANU/MH/0168/1969 .................................................... 21
Vide Babba V. State of Maharashtra, (2005) 11 SCC 569 ...................................................... 23
Vide Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 ..... 12
Vishaka&Ors. vs Union of India, (1997) 6 SCC 241 .............................................................. 16
West Bengal State Electricity Board v. Dilip Kumar Ray, AIR 2007 SC 976 ......................... 21
Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374 .................................... 15, 16

Statutes

Ozalan Constitution ................................................................................................................. 17

Epidemic Diseases Act 1897 ................................................................................................... 11
Ozalan Penal Code ....................................................................................................... 17, 18, 19
Ozalan Code of Criminal Procedure ...................................................................... 10, 11, 12, 18

Treatises

International Covenant on Civil and Political Rights (adopted 16 December 1966, opened for
signature 14 April 1967, entered into force 23 March 1976) 999 UNTS 171 ..................... 14

Journals and Articles

VII
Memorial for Petitioner INDEX OF AUTHORITIES

Ameya Bokil and Nikita Sonavene, ‘Why Relying on Criminal Law Should Not Be the
Answer to a Pandemic’ (The Wire, 11 April 2020) ............................................................. 11
Editorial, 'Chosen to Make Them Scapegoats: Bombay HC Quashes FIRs Against Tablighi
Jamaat Member’, The WIRE (23 August 2020) ................................................................... 21
Eric Reinhart and Daniel L. Chen, ‘Incarceration And Its Disseminations: COVID-19
Pandemic Lessons From Chicago’s Cook County Jail’ (2020) 39 Health Affairs 1412 ..... 11
Juhi Gupta, 'Interpretation of Reverse Onus Clauses' (2012) 5 NUJS L Rev 49 ..................... 14
Justice Madan Lokur, Justice A.K. Patnaik, Justice J. Chelameswar and Justice Arjan Sikri,
Misuse of NSA and UAPA (People being Falsely Framed, Cases “Cooked Up”, 30
September 2020) .................................................................................................................. 19
N.C. Asthana, ‘Malicious Prosecution: A Deep Dive into Abuse of Power By Police’, The
WIRE (26 May 2020) ........................................................................................................... 19
Paul Roberts, ‘Taking the Burden of Proof Seriously’ (1995) Criminal Law Review ............ 14
Rahul Singh, 'Reverse onus Clauses: A Comparative Law Perspective' (2001) 13 Student
Advoc 148 ............................................................................................................................ 14
Una Ni Raifeartaigh, ‘Reconciling Bail Law with the Presumption of Innocence’ (1997) 17
Oxford Journal of Legal Studies 1 ................................................................................. 15, 17

Books

Durga Das Basu, Commentary on the Constitution of India (4th edn, Sarkar & Sons 2018)... 17

Law Comission Reports

Law Commission, Law Relating to Arrest (Law Com No.177, 2001) .................................... 18
Law Commission, Wrongful Prosecutions(Miscarriage of Justice): Legal Remedies (Law
Com No.277, 2018) .............................................................................................................. 19

VIII
Memorial for Petitioner STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

The Petitioner hereby invokes the writ jurisdiction and the appellate jurisdiction of the
Hon’ble Supreme Court of Ozala under Article 32 and 136 respectively of the Constitution of
Ozala. The Petitioner respectfully submits herself to the jurisdiction of this Hon’ble Court.
She undertakes to accept the judgement of this court in its entirety and shall execute it in
good faith.

IX
Memorial for Petitioner STATEMENT OF FACTS

STATEMENT OF FACTS

THE BACKDROP- Ozala is a developing country with one of the highest populations in
the world and a population density of 1500 persons per square kilometer. The State of Aspar
is the eastern most state of Ozala and shares its longest territorial border with Yada. The
Great Temple of Aspar is widely believed to be the birthplace of the founder of the Vishlip
sect of Lopasis which is considered to be a majority tribe in Yada. Following the outbreak of
the COVID-19/ Coronavirus pandemic, various countries had imposed travel restrictions and
compulsory thermal scanning at the airports. The Government of Aspar issued the 'Aspar
Epidemic Diseases COVID 19 Regulations, 2020' on 13 March, 2020. The said Regulations,
inter alia, prohibited all gatherings of more than 15 persons within the State. However, the
Government of Ozala had not placed many restrictions on travel within the country.

MS. QUANTISA’S VISIT TO OZALA- On 13 March, 2020 four citizens of Yada arrived
in Aspar from Yada for the annual congregation at the Great Temple of Aspar. These four
persons included Ms. Quantisa, believed to be the reincarnation of the founder of the sect,
who was to preside over the opening ceremony on 14 March, 2020. All requisite permissions
from the State Government of Aspar for the event had been taken prior to the outbreak of
COVID-19 in January, 2020. Ms. Quantisa showed flu-like symptoms and she agreed to be
tested for COVID-19 on the day of departure, Ms. Quantisa was firmly of the belief that her
flu-like symptoms were not a reason for worry since she, being a regular practitioner of
Cosmic Meditation, could never be affected by COVID-19.

CONGREGATION IN ASPAR- The opening ceremony of the congregation on 14 March,

2020 was attended by 58 visitors Though the police was present at the event to provide
security, they expressed no objection to the ceremony as social gatherings of more than 15
people were still commonplace all over the state – despite official orders to the contrary.
During the ceremony she told all attendees that if they drank holy water' from her hands, their
immunity against the disease would become stronger. Her views were readily accepted
amongst attendees, as they believed that she was a credible source of information as she had a
graduate degree in science.

DETECTION OF VIRUS- Ms. Quantisa had to be urgently hospitalized and could not leave
because she developed high fever. On 16 March, 2020, Ms. Quantisa tested positive for
COVID-19. The government was slow to react to the first COVID-19 case in the eastern

X
Memorial for Petitioner STATEMENT OF FACTS

states. The government started tracing the attendees of the congregation on 19 March, 2020.
Fortunately, despite being tested positive for the virus, there were no deaths amongst any of
the police officers/ attendees or their contacts that were traced by the Government. Nobody
was affected further by these persons.

THE INVESTIGATION- At the behest of certain Gamus politicians, criminal law was set
into motion and a First Information Report was registered against Ms. Quantisa for offences
under Section 188, 270, 325 and 308 of the Ozalan Penal Code, 1870 read with Section 3 of
the Epidemic Diseases Act, 1897 on 22 March, 2020. She was arrested from the hospital on
the same day and she fully recovered within a week. Upon conclusion of investigation, a
Charge sheet/ Final Report came to be filed on 26 April, 2020. Since normal functioning of
trial courts has been suspended due to the pandemic, charges have not been framed in the
matter and trial has not commenced till date.

DECISION OF THE HIGH COURT- Ms. Quantisa filed a bail application before the High
Court of Aspar inter alia arguing that it is settled law that bail is the rule and jail is the
exception. To allay apprehensions of her fleeing from justice, she undertook to surrender her
passport and reside at the Great Temple of Aspar until the conclusion of her trial. The High
Court rejected the application by placing reliance on Section 439A of the Code of Criminal
Procedure which has two conditions attached to it.

PRESENT SITUATION- Ms. Quantisa was advised that the 'twin conditions'
introduced under Section 439A were an anathema to any criminal justice system. Thereafter,
she filed a Writ Petition before the Supreme Court challenging the constitutionality of such
'twin conditions' of bail on the ground that the burden of proof cannot be reversed to keep a
presumably innocent person in indefinite custody. She contended that it would be impossible
for any accused person to establish their innocence in bail proceedings. The Supreme Court
of Ozala, exercising its extraordinary powers, has clubbed Ms. Quantisa's appeal against the
dismissal of her bail application by the High Court of Aspar and her Writ Petition challenging
the constitutionality of 'twin conditions of bail.

XI
Memorial for Petitioner ISSUES RAISED

ISSUES RAISED

-I-

Whether the additional conditions for grant of bail under Section 439A of the Code of
Criminal Procedure that require a court to be satisfied that there are “reasonable grounds for
believing that a person is not guilty of an offence” and that the person “is not likely to commit
any offence while on bail’ violate fundamental rights guaranteed under the Constitution of
Ozala?

-II-

Whether Ms. Quantisa is entitled to be released on bail?

XII
Memorial for Petitioner SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS

I. THE ADDITIONAL CONDITIONS FOR THE GRANT OF BAIL UNDER

SECTION 439A OF THE CODE OF CRIMINAL PROCEDURE VIOLATE
THE FUNDAMENTAL RIGHTS GUARANTEED UNDER THE
CONSTITUTION OF OZALA.

The additional conditions under Section 439A do not have rational nexus with the object of
the very Act that provides the basis of the classification for distinct treatment of the offenders
of Section 188 of the Penal Code, and hence, is violative of the right to equality. Also, the
additional conditions are manifestly arbitrary. The language of the Section is irrational as it is
amenable to be applied in a discriminatory manner, vests arbitrary power in the Public
Prosecutor and no adequate determining principles have been laid down for the purpose of
recording of the satisfaction by the Courts. Hence, the additional conditions suffer from
manifest arbitrariness and deny the equal protection of law as guaranteed by the right to
equality under the Constitution.

Moreover, the additional conditions are also violative of right to life and liberty as they run
contrary to the right to fair trial and the principle of the presumption of innocence. They also
reverse the burden of proof and provide for unfair procedure. The object of the legislation
cannot be made a ground to trample upon the rights of the individuals.

The conditions also contravene the principle laid down by the courts in various cases, that is
of not delving into the merits of the case at the stage of the bail application.

II. WHETHER MS. QUANTISA IS ENTITLED TO BE RELEASED ON BAIL?

It is submitted that the legal principle- ‘Bail is a right and Jail is an exception’ directly applies
to the present case as denial of bail violates right to life and liberty under Article 21 of the
Ozalan Constitution. Similarly, it was contended that in bailable offences, bail should be
given to the accused as a matter of right. Additionally, Ms. Quantisa’s should be entitled to
bail even under Section 308 of the Penal Code as it was contended that she has been falsely
implicated by the police authorities and didn’t have the required intention to commit the
offence. Moreover, it should be noted that there was a failure on the part of the Aspar Police
to enforce the Epidemic Regulations. It was further submitted that the conditions required for
the grant of bail are fulfilled in the present case.

XIII
Memorial for Petitioner ARGUMENTS ADVANCED

ARGUMENTS ADVANCED

I. THE ADDITIONAL CONDITIONS FOR THE GRANT OF BAIL UNDER

SECTION 439A CODE OF CRIMINAL PROCEDURE OF OZALA
VIOLATE THE FUNDAMENTAL RIGHTS GUARANTEED UNDER THE
OZALAN CONSTITUTION.

1. The additional conditions for the grant of bail under Section 439A, Code of Criminal
Procedure of Ozala (herein after referred as “Procedure Code”) are violative of the
Right to Equality [A.], Right to Life and Liberty [B.], and principle laid down by the
courts [C.].

A. The additional conditions for the grant of bail under Section 439A are violative of
the Right to Equality.

2. The additional conditions for the grant of bail under Section 439A1 that require Court
to be satisfied that there are reasonable grounds for believing that the accused is not
guilty and will not commit a similar offence while on bail, are discriminatory [i.] and
suffer from manifest arbitrariness[ii.].

i. The additional conditions under Section 439A are discriminatory.

3. The only exception to right to Equality is a classification done on the basis of

intelligible differentia2 and such a classification should have a rational nexus to the
object sought to be achieved.3

4. Petitioner submits that the Section 439A treats the persons accused of an offence
under Section 188 of Ozalan Penal Code (herein after referred as “Penal Code”) read
with Section 3 of Epidemic Diseases Act, 1897 as different from those accused of an
offence under only Section 188, Penal Code. Though, this classification can be said to
be founded on an intelligible differentia as the persons who commit an offence under
Section 3 of EDA, 1897 and are thus punished under Section 188 of Penal Code form
a class by themselves quite distinct from those offenders who violate only Section 188

1
Procedure Code 1973, §439A.
2
State Trading Corporation of India vs. Commercial Tax Officer and Ors., 1963 AIR 1811.
3
Vide Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology, (2002) 5 SCC 111, ¶12.

1
Memorial for Petitioner ARGUMENTS ADVANCED

of the Penal Code, but it is contended that this differentia does not have a rational
nexus to the object sought to be achieved by the Epidemic Diseases Act which form
the basis of this differentia.

5. The object of the EDA, 1897 is to “to provide for the better prevention of the spread
of the Dangerous Epidemic Diseases”4, however, it is to be noted that stringent bail
provisions and detention of the accused persons for long in the jail goes against the
object of preventing the spread of epidemic diseases and here, in particular of
COVID-19. Prisons and jails act as amplifiers of infectious diseases due to close
proximity and impossibility of social distancing, hence exacerbating the pandemic
rather than containing it.5 Also, even the idea of retributive justice is
counterproductive to the objective of the EPA, 1897.

6. Therefore, the additional conditions, providing for stringent bail conditions6 do not
have a rational nexus with the object of the very Act that provides the basis of the
classification for distinct treatment of the offenders of Section 188 of Penal Code.

ii. The additional conditions suffer from manifest arbitrariness.

7. The additional conditions are manifestly arbitrary i.e., irrational and without adequate
determining principles, therefore, denying the equal protection of law as guaranteed
by the right to equality under the Ozalan Constitution (herein after referred as
“Constitution”).7 The language of the section is irrational [a.]. No adequate
determining principles have been laid down for the satisfaction of the second
condition [b.]. Non-application of this section for the grant of anticipatory bail leads
to arbitrary results [c.].

a) The language of the section is irrational

8. The numerous interpretations of the language may lead to its discriminatory

application. It closes the option for the trial court to hold the accused ‘guilty’, if
granted bail. It vests arbitrary power in the Public Prosecutor.
4
Epidemic Diseases Act 1897.
5
Eric Reinhart and Daniel L. Chen, ‘Incarceration And Its Disseminations: COVID-19 Pandemic Lessons From
Chicago’s Cook County Jail’ (2020) 39 Health Affairs 1412; Ameya Bokil and Nikita Sonavene, ‘Why Relying
on Criminal Law Should Not Be the Answer to a Pandemic’ (The Wire, 11 April 2020)
<https://thewire.in/law/criminal-law-coronavirus-pandemic> 24 September 2020.
6
Procedure Code 1973, §439A.
7
Shayara Bano vs. Union of India and others, (2017) 9 SCC 1; Ankush Kumar @ Sonu vs State of Punjab,
(2018) SCC OnLine P&H 1259.

2
Memorial for Petitioner ARGUMENTS ADVANCED

9. It is well-established that no court is expected to record any finding in regard to guilt

of the accused at the stage of bail application by going into the merits of the case.8 In
order to not disregard this principle, the courts can lay down different tests meant for
the validity of its satisfaction as contemplated by Section 439A, i.e., prima facie
satisfaction or more than it but less than what is required for recording of not guilty,
etc.9

10. The multiple ways in which the Court can apply the language of the first condition,
itself is evident of the amenability of this provision to be applied in a discriminatory
manner.

11. The language of the section is also inconsistent in the sense that if a Court grants the
bail after recording the reasonable grounds for believing that the person is not guilty,
then this would foreclose the option for the trial Court to hold that person guilty
because at the both the stages, bail and trial, the Court has to examine the same
material and record and hence, the accused can raise the poser as to how the
satisfaction can be restricted only for the bail purpose.10

12. The language of the section provides that the conditions mentioned in it would apply
only if the Public Prosecutor desires, i.e., opposes the bail application. So, the
application of the conditions becomes contingent on uncontrolled discretion of the
Public Prosecutor. This discretion and arbitrary power vested in the Public Prosecutor
renders the entire process as discriminatory.

b) No adequate determining principles exist for the satisfaction of the second

condition.

13. The second condition requires the Court to record the satisfaction that there are
reasonable grounds for believing that the accused is not likely to commit any similar
offence.11 It is humanly impossible for the Court to record a reasonable satisfaction
about the possible future mental state and the conduct of the accused.12

8
The State Of Orissa vs. Mahimananda Mishra, (2018) 10 SCC 516, ¶12.
9
Ankush Kumar @ Sonu vs. State of Punjab, (2018) SCC OnLine P&H 1259.
10
ibid.
11
Procedure Code 1973, §439A (ii).
12
Bimal Kaur Khalsa vs. Union Of India And Ors., AIR 1988 P H 95, ¶118.

3
Memorial for Petitioner ARGUMENTS ADVANCED

14. Since, the second condition lays down a requirement which cannot be fulfilled by
stretch of any human logic and in respect to with, no adequate determining principles
can be spelled out, this condition is an irrational requirement.

c) Non-application of this section for the grant of anticipatory bail leads to

arbitrary results

15. Section 439A governs only the grant of bail and not of anticipatory bail. Thus,
anticipatory bail can be granted to a person accused of an offence under Section 3 of
EDA, 1897 without satisfying the twin conditions laid under Section 439A.

16. This would lead to anomalous situation as if the anticipatory lasts throughout the trial,
then the accused will be out on bail without satisfying the rigors of Section 439A,
however, if another accused, prosecuted for the same offense gets arrested, he/she
would have to satisfy these requirements. This will lead to arbitrary and unjust
results.13

17. Therefore, the conditions under the Section 439A are discriminatory, suffer from
manifest arbitrariness and hence, violative of the right to equality.

B. The additional conditions for the grant of bail under Section 439A are violative of
the Right to Life and Liberty.

18. The additional conditions laid under Section 439A are violative of Right to fair trial
[i.], Presumption of innocence [ii.] and provide for unfair procedure [iii.]. Also,
‘object’ of the Act cannot be a ground to trample the right to life and liberty [iv.].

i. The additional conditions violate the right to fair trial.

19. The right to free and fair trial is the sine qua non of the right to life and liberty.14
Extended imprisonment impedes efficient assistance of counsel, hence, prejudicing
the right to fair trial.15 If the twin conditions of the Section 439A are to be satisfied at
the stage of the bail itself, then the accused will have to disclose their defense at a
time when they are unable to do so.16 It would be impossible to establish their

13
Nikesh Tarachand Shah vs. Union Of India, (2018) 11 SCC 1, ¶35.
14
Zahira Habibullah Sheikh vs. State of Gujarat, (2006) 3 SCC 374.
15
Sanjay Chandra vs. CBI, (2012) 1 SCC 40.
16
Nikesh Tarachand Shah vs. Union Of India, (2018) 11 SCC 1.

4
Memorial for Petitioner ARGUMENTS ADVANCED

innocence at the stage of bail, i.e., before they were provided with an opportunity to
cross-examine witnesses or lead defense evidence.
20. A free person is in a much better condition to defend their case. A presumably
innocent person must have the right and freedom to prove their innocence.17 The right
to a fair trial also includes presumption of innocence,18 which is also being turned
upside down by the additional conditions.

ii. The additional conditions are against the presumption of innocence.

21. The principle of “Presumption of Innocence” is embedded in the right to life and
liberty [a.]. The additional conditions reverse the burden of proof [b.]. The second
condition under Section 439A goes against “Presumption of Innocence” [c.].

a) “Presumption of Innocence” is embedded in the right to life and liberty

22. The due process clause is read into the right to life and liberty and if this right
incorporates the due process clause, then the right to be presumed innocent until
proven guilty becomes a fundamental right.19
23. Any international covenant, which is not inconsistent with the fundamental rights
must be read into these rights to promote the object of constitutional guarantee, even
if not signed by the country20, and since, presumption of innocence has been
recognized as a fundamental human right in many international covenants21, this
principle comes under the right to life and liberty.

b) The additional conditions reverse the burden of proof

24. The right to life and liberty provides that the ‘procedure established by law’ must be
reasonable, fair22 and in accordance with the right to fair trial.23 However, reverse
onus clauses run contrary to this by enabling state to intervene in the lives of the

17
ibid.
18
Ankul Chandra vs. Union of India, (1996) 6 SCC 354.
19
Sunil Batra vs. Delhi Administration, (1978) 1 SCC 248; Rahul Singh, 'Reverse onus Clauses: A Comparative
Law Perspective' (2001) 13 Student Advoc 148.
20
Vishaka & Ors. vs. Union of India, (1997) 6 SCC 241.
21
International Covenant on Civil and Political Rights (adopted 16 December 1966, opened for signature 14
April 1967, entered into force 23 March 1976) 999 UNTS 171, Art. 14(2).
22
Maneka Gandhi vs. Union Of India, 1978 AIR 597.
23
Zahira Habibullah Sheikh vs. State of Gujarat, (2006) 3 SCC 374.

5
Memorial for Petitioner ARGUMENTS ADVANCED

individuals in catastrophic ways.24 The presumption of innocence is inextricably

linked to the burden of proof.25 And, the reverse onus clauses displace this
presumption, hold the accused as a presumptive criminal, thus disregard their
individual liberty and dignity.
25. Also, reverse burden clauses leave no choice with the accused but to testify to his
innocence, thus attracting concerns of self-incrimination,26 against which the right has
been provided in the Constitution.
26. In the instant case, in order to obtain bail, the case should be made out in such a way
so as to convince the Court to such an extent that it records that there are “reasonable
ground for believing that he is not guilty of such offence”. This threshold turns on its
head the presumption of innocence27 and almost brings in ‘reverse burden of proof’,
at the time of bail, when she does not have the proper opportunity to establish his case
or cross examine witnesses and lead defense evidence.

c) The second condition defies the presumption of innocence

27. Imposition of restrictions to prevent absconding or tampering with the evidences does
not offend the presumption of innocence as its purpose is to ensure unhampered
judicial process and it is not based on the view that the accused is guilty.28

28. But, if the bail is restricted on the ground that the accused may commit a similar
offence if released, then it turns violative of the presumption of innocence as it is
premised on the view that the accused is guilty of the offence of which he/she has
been accused.29

iii. Additional conditions provide for unfair procedure

29. As contended above, it is not possible by extension of any human logic to record a
satisfaction on the reasonable grounds about the possible future conduct of any
person, hence, the condition that requires court to record such a satisfaction for the

24
Paul Roberts, ‘Taking the Burden of Proof Seriously’ (1995) Criminal Law Review 783.
25
Juhi Gupta, 'Interpretation of Reverse Onus Clauses' (2012) 5 NUJS L Rev 49.
26
ibid.
27
Union of India and Anr. vs. Sanjeev Deshpande, AIR 2014 SC 3625.
28
Una Ni Raifeartaigh, ‘Reconciling Bail Law with the Presumption of Innocence’ (1997) 17 Oxford Journal of
Legal Studies 1.
29
ibid.

6
Memorial for Petitioner ARGUMENTS ADVANCED

purpose of granting bail, can be regarded as providing an unfair procedure, which in

turns violates the right to life and liberty.30

30. These conditions also fall foul of Eighth Amendment of the US Constitution which
interdicts excessive bail and has been read in to the right to life and liberty.31

iv. ‘Object’ of the Act cannot be made a ground to trample the right to life and
liberty

31. The test to determine the invasion of the rights of a citizen is not based on the object
of the legislating authority but it is the direct operation of the acts on the rights of the
people.32 The legitimacy of the intended objective does not permit the employment of
such means that impinge upon the fundamental rights.33

32. Therefore, even if the legislature of Aspar intends to stop the spread of COVID-19, it
cannot enact such a legislation that impinges upon the fundamental rights guaranteed
under the Constitution.

C. The additional conditions violate the principle laid down by the courts

33. It is a well-established principle that while considering a bail application, the Court
should not go deep into the merits of the case, all what is needed is a prime facie case
against the accused.34 At the stage of bail, examination of the merits should be
avoided which may prejudice the case of the accused.35

34. The term “reasonable grounds” in the Section 439A implies something more than
prima facie grounds.36 Something which is required to be done after a full-fledged
trial cannot be done at the stage of bail, i.e., recording a satisfaction about the guilt of
the accused. These conditions prejudice the case of the accused, hence going against
the principle established by the courts and impinge the right of the accused to be
treated fairly.

30
Ankush Kumar @ Sonu vs. State of Punjab, (2018) SCC OnLine P&H 1259.
31
Rajesh Kumar vs. State through Government of NCT of Delhi, (2011) 13 SCC 706, ¶60,61.
32
Rustom Cavasjee Cooper vs. Union Of India, 1970 AIR 564.
33
Indian Express Newspapers (Bombay) Private Ltd. & Ors. vs. Union Of India & Ors., 1986 AIR 515.
34
Anil Kumar Yadav vs. State (NCT) of Delhi, (2018) 12 SCC 129.
35
Niranjan Singh and another vs. Prabhakar Rajaram Kharote and others, (1980) 2 SCC 559.
36
State Of Kerala etc. vs. Rajesh etc., 2020 SCC OnLine SC 81.

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Memorial for Petitioner ARGUMENTS ADVANCED

35. Therefore, the additional conditions for the grant of bail under Section 439A are
violative of the fundamental rights guaranteed under the Constitution.

8
Memorial for Petitioner ARGUMENTS ADVANCED

II. MS. QUANTISA IS ENTITLED TO BE RELEASED ON BAIL

36. At the very outset, it is submitted that Ms. Quantisa should be released on bail based
on reasons given below. The well settled rule of “Bail is a right and Jail is an
exception” directly applies to instant case.37 [A.]. Ms. Quantisa should be entitled to
bail even for the offence under section 308 of the Penal Code38 [B.]. Also, the
conditions required for the grant of bail are fulfilled in the present case39 [C.].

A. The principle of ‘Bail is a right and Jail is an exception’ directly applies to

instant case

37. ‘Bail is a right and Jail is an exception’ is a legal principle which was laid down by
the Supreme Court in a landmark judgement of State of Rajasthan v. Balchand.40 The
principle finds its source from several rights guaranteed by the Constitution,
especially the right to life and liberty enshrined under Article 21.41 It further
emphasizes on the fundamental postulate of criminal jurisprudence i.e. ‘presumption
of innocence’.42 Detention of an individual impinges upon his liberty and therefore
courts, while interpreting the provisions of the Procedure Code pertaining to arrest,
ordinarily hold that unless indispensable, detention of an individual must be
avoided.43

i. The denial of bail amounted to violation of right to life and liberty.

38. Article 21 of the Constitution lays down that no person shall be deprived of his life
and liberty except in accordance to the procedure established by law,44 and the
procedure must be just and reasonable.45 The liberty of an individual is a matter of
great constitutional importance in our system of governance,46 but when bail is denied

37
Emperor vs. H.L. Hutchinson, AIR 1931 All 356.
38
Penal Code 1860, §308.
39
Sidharth Vashisth alias Manu Sharma vs. State of Delhi, MANU/DE/0998/2003, p.688; Birajit Sinha V. State
of Tripura, MANU/GH/0220/2004, ¶4487.
40
State of Rajasthan vs. Balchand, AIR 1977 SC 2447.
41
Constitution, Article 21.
42
Una Ni Raifeartaigh, ‘Reconciling Bail Law with the Presumption of Innocence’ (1997) 17 Oxford Journal of
Legal Studies 1.
43
Babua Alian Tazmul Hussain vs. State of Orissa & Others, AIR 2002 SC 2393.
44
Constitution, Art.21.
45
Durga Das Basu, Commentary on the Constitution of India (4th edn, Sarkar & Sons 2018) p.3049.
46
Siddharam Satlingappa Mhetre vs. State of Maharashtra, (2011) 1 SCC 694.

9
Memorial for Petitioner ARGUMENTS ADVANCED

to the accused, the fundamental right to liberty is disposed off casually with a cryptic
order.47 Similarly, the denial of bail to Ms. Quantisa in the present case violates her
fundamental right to liberty.

a) Right to live with human dignity is one of the components of Right to life and
liberty.

39. It is noted that in this age, the judiciary has not only been involved in judicial
activism, but also in judicial creativity.48 This can be traced from how the trend of
interpreting Article 21 has changed over years.49 While dealing with the cases related
to denial of bail, the requirements of Article 21 (which includes right to live with
human dignity) will have to be kept in mind.50 Additionally, it has been held that a
judge must be mindful that incarcerating a person dents his/her dignity.51 Ms.
Quantisa, being a natural person has every right to live with human dignity under
Article 21.
ii. In Bailable offences, Bail should be given to the accused as a matter of
right.

40. It is submitted that a person accused of a bailable offence at any time while under
detention has a right to be released on bail in view of section 436 of the Procedure
Code.52 In the instant case, Ms. Quantisa was booked under Section 188, 270, 325
and 308 of the Penal Code. It should be noted that the offence of ‘disobedience’53,
‘spreading of infectious disease’54 and grievous hurt55 are bailable in nature, except
section 308 (attempt to culpable homicide)56 which we submit, is falsely invoked and
will be discussed in the next limb of this issue.

47
Gudikanti Narasimhulu and Ors. vs. Public Prosecutor, AIR 1978 SC 429.
48
Bombay Dyening Co. Ltd. vs. Bombay Action Group & Ors, AIR 2006 SC 1489; Mithu V. State of Punjab,
AIR 1983 SC 473.
49
Law Commission, Law Relating to Arrest (Law Com No.177, 2001).
50
Maneka Gandhi vs. Union Of India, 1978 AIR 597; Francis Coralie Mullin V. The Administrator, Union of
Delhi, MANU/SC/0517/1981.
51
Dataram Singh vs. State of Uttar Pradesh & Another, AIR 2018 SC 980 ¶2.
52
Procedure Code 1973, §436.
53
Penal Code 1860, §188
54
Penal Code 1860, §270
55
Penal Code 1860, §325
56
Penal Code 1860, §308

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Memorial for Petitioner ARGUMENTS ADVANCED

41. Additionally, even when a person ‘suspected’ of committing a bailable offence is

prepared to furnish bail, Magistrate has no option but to release him on appropriate
bail.57

B. Ms. Quantisa should be entitled to bail even for the offence under section 308 of
the Penal Code

42. At the very outset, it is submitted that the petitioner should be entitled to bail even for
the offence under section 308 of Penal Code.58 Ms. Quantisa has been falsely
implicated by the police authorities under section 308 [i]. Even, if Ms. Quantisa had
the required intention under section 308, bail should be given to her based on other
factors [ii].

i. Ms. Quantisa has been falsely implicated by the police authorities under
section 308.

43. It is submitted that in peculiar facts and circumstances of the present case, the
petitioner has been falsely implicated by the police authorities under section 308
(attempt to culpable homicide) of the Penal Code.59 By looking at the factual matrix,
it is noted that the complaint was filed at the behest of certain politicians of Gamus
tribe which is a majority tribe in Ozala.60
44. The aforesaid facts and discussion of law shows that the Aspar Police acted
mechanically.61 It appears that the Government was acting under some political
compulsion and hence there was non-application of mind by police.62 It has been
noted at several occasions that the motive behind adding a non-bailable offence in the

57
Kanubhai vs. State of Gujarat, MANU/GJ/0083/1972; Union of India vs. Bhagwandas,
MANU/MH/0168/1969, ¶88.
58
Penal Code 1860, §308.
59
Justice Madan Lokur, Justice A.K. Patnaik, Justice J. Chelameswar and Justice Arjan Sikri, Misuse of NSA
and UAPA (People being Falsely Framed, Cases “Cooked Up”, 30 September 2020),
<https://www.thecitizen.in/index.php/en/NewsDetail/index/9/19434/People-Being-Falsely-Framed-Cases-
Cooked-Up-Under-Draconian-Laws-Say-Former-SC-Judges> accessed on 2 October 2020.
60
Factsheet [¶12].
61
ibid.
62
Konan Kodio Ganstone vs. State of Maharashtra, MANU/MH/1025/2020.

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Memorial for Petitioner ARGUMENTS ADVANCED

charge sheet is to retain the accused person in custody for a longer period of time63 as
was done to Ms. Quantisa in the present case.

a) The requirements of Section 308 of the Penal Code are not fulfilled in the
present case

45. It is submitted that the ingredients which are required to invoke section 308, are not
present in this case. The Hon’ble Supreme Court in Om Prakash vs. The State of
Punjab stated that to invoke Section 308 of the Penal Code, ‘intention’ to commit
culpable homicide not amounting to murder must be established. 64 Therefore, mens
rea or knowledge is an essential ingredient of this crime.
46. The word ‘Intention’ is clearly defined by this Court in the case of Jai Prakash
(1991)65, where it was observed that intention is the conscious exercise of the mental
faculties of a person to do an act for the purpose of accomplishing or satisfying a
purpose. The fact that Ms. Quantisa was herself unaware of the situation before
attending the ceremony clearly shows that she didn’t have the ‘purpose of
spreading COVID’ in her mind. Getting her own followers or advisors infected was
certainly not her purpose.

b) Failure on the part of the Aspar Government to enforce the Aspar Epidemic
Diseases Regulation, 2020

47. From get-go, it has been observed that there was a failure on the part of the Aspar
Police to enforce Aspar Epidemic Regulation, 2020 which prohibited all gatherings of
more than 15 persons within the state. It is clearly mentioned in the facts of the case
that despite the official orders, Aspar Police didn’t object to the ceremony which was
attended by 58 visitors.66 Even before holding this ceremony, the failure of the police
to gather the details of the number of persons attending the ceremony, is inexplicable.
Additionally, what is more shocking is the huge delay in tracing the attendees of the

63
West Bengal State Electricity Board vs. Dilip Kumar Ray, AIR 2007 SC 976; Law Commission, Wrongful
Prosecutions(Miscarriage of Justice): Legal Remedies (Law Com No.277, 2018); N.C. Asthana, ‘Malicious
Prosecution: A Deep Dive into Abuse of Power By Police’, The WIRE (26 May 2020).
64
Om Prakash vs. The State of Punjab, 1961 AIR 1782, ¶09.
65
Jai Prakash vs. State (Delhi Administration), (1991) 2 SCC 32.
66
Factsheet [¶07].

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Memorial for Petitioner ARGUMENTS ADVANCED

event which further aggravated the situation.67 It is submitted that just to sweep their
mistakes under the rug; the authorities started blaming Ms. Quantisa.

48. The High Court has clearly stated that “the action against the foreigners, suspected of
spreading the virus, is an attempt by the political government to find a scapegoat
especially when the country is facing a pandemic or calamity.”68

ii. Arguendo, even if Ms. Quantisa had the required intention under section
308, bail should be given to her based on other factors.

49. Assuming but not conceding, that Ms. Quantisa had the required intention, still bail
should be given to her based on other factors. It is submitted that delay in trial is a
relevant consideration in a bail application. This Court has taken the view that when
there is a delay in the trial, bail should be granted to the accused.69 In the instant case,
since normal functioning of the trial courts has been suspended due to the pandemic,
there is a delay in the trial of the case.70 Therefore, bail should be granted to the
accused.

50. Additionally, it is a well-known fact that in the case of non-bailable offence, bail is a
matter of judicial discretion.71 But the word ‘discretion’ when applied to court of
justice means “sound discretion guided by law”.72 It is submitted that the Court while
granting bail to the accused in a non-bailable offence particularly where the trial has
not been commenced should take into consideration other factors,73 which shall be
discussed in the next limb of this issue and if those conditions are satisfied, bail
should be granted to the accused.

C. The conditions required for the grant of bail are fulfilled in the present case

51. At the very outset, it is submitted that the conditions on which the bail application of
Ms. Quantisa was rejected by the High Court, are fulfilled in the present case. Firstly,
67
Factsheet [¶10].
68
Konan Kodio Ganstone vs. State of Maharashtra, MANU/MH/1025/2020; Editorial, 'Chosen to Make Them
Scapegoats: Bombay HC Quashes FIRs Against Tablighi Jamaat Member’, The WIRE (23 August 2020).
69
Liaqat Hussain vs. Union Territory of J&K, MANU/JK/0272/2020; Vide Babba vs. State of Maharashtra,
(2005) 11 SCC 569.
70
Factsheet [¶13].
71
Talab Haji Hussain vs. Madhukar Purshottam Mondkar, AIR 1958 SC 376.
72
Gudikanti Narasimhulu and Ors. vs. Public Prosecutor, AIR 1978 SC 429.
73
Gurcharan Singh vs. State (Delhi Admn.) (1987) 1 SCC 118; State vs. Jaspal Singh Gill, AIR 1984 SC 1503.

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Memorial for Petitioner ARGUMENTS ADVANCED

it should be noted that there are reasonable grounds for believing that she is not guilty
of the offence as Ms. Quantisa didn’t have the required intention necessary for
invoking grave sections of the penal code. Secondly, coming to the question of her
public stature and social media presence, this Court in one of its recent decisions has
stated that by placing certain strict restrictions (not allowing the accused person to
give interviews to the media or making public statements), bail can be granted to
the accused.74 Thirdly, it has been noted by High Court that Ms. Quantisa is accused
of a heinous/grave offence and ought not to be released on bail.75 But, in contrary to
this, it is humbly submitted that while granting bail in a non-bailable offence, the
Court has to keep in mind not only the nature or gravity of accusations, but the
severity of the punishment.76

52. Additionally, it should be noted that the phrase ‘Gravity of the offence’ is very
subjective in nature and is not decided by the counsels, the jury or the investigative
agencies, but by the legislature in its wisdom. The Penal Code punishes a ‘grave’
offence by death, life imprisonment or seven years’ punishment. The usage of the
term ‘heinous/grave’ is only adding subjective element to the judgement.77

i. The triple test used by the Courts while granting regular bail in a non-
bailable offence is qualified by Ms. Quantisa

53. It is submitted that the triple test which is used by the Courts while granting bail in a
non-bailable offence is qualified by Ms. Quantisa. Firstly, the petitioner is not a flight
risk. It is clearly mentioned in the factsheet, that ‘to allay her apprehensions of fleeing
from justice, she undertook to surrender her passport and reside at the Great Temple
of Aspar until the conclusion of her trial’78 which indicates that there’s no fear of
abscondence.79 Further it is observed that the appellant is willing to cooperate in the
investigation as and when required by the respondent.80 Secondly, coming to the
question of tampering with the evidences, it should be noted that there’s no possibility
74
P. Chidambaram vs. Directorate Of Enforcement, (2019) 9 SCC 66.
75
Factsheet [¶14].
76
Sanjay Chandra vs. CBI, (2012) 1 SCC 40.
77
P. Chidambaram vs. Central Bureau of Investigation, 2019 SCC OnLine SC 1197.
78
Factsheet [¶14].
79
Prahlad Singh Bhati vs. NCT, Delhi, AIR 2001 SC 1444; Ram Govind Upadhyay vs. Sudarshan Singh, AIR
2002 SC 1475; Hardwari Lal vs. Emperor, 33 CrJ 773.
80
Kalyan Chandra Sarkar vs. Rajesh Ranjan, (2004) 7 SCC 528.

14
Memorial for Petitioner ARGUMENTS ADVANCED

of the appellant tampering with the evidence as the documents related to the present
case are in custody of the prosecuting agency, the Government of Aspar and the
Court.81 Thirdly, it is submitted that during the course of her arrest, there’s no
allegation against the petitioner with respect to any material witness being influenced
or approached.
54. Even, if there is a mere apprehension that witnesses might be influenced by the
petitioner, the prosecution can enforce the witnesses’ protection scheme laid down in
Mahendra Chawla’s Case. 82

55. Therefore, Ms. Quantisa is entitled to be released on bail.

81
Subbrama Ayet vs. State, AIR 1953 TraCo.25.
82
Mahender Chawla vs. Union of India, (2019) 14 SCC 615.

15
Memorial for Petitioner PRAYER

PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed that this Hon’ble Court may be pleased to adjudge and declare that:

1. The additional conditions for grant of bail under Section 439A of the Code of Criminal
Procedure violate fundamental rights guaranteed under the Constitution of Ozala.

2. Ms. Quantisa should be released on bail.

And pass any other order, direction, or relief that this Hon’ble Court may deem fit in the
interests of justice, equity and good conscience.

All of which is humbly prayed,

RAMASWAMY

Counsels for the Petitioner

XIV