ITM SCHOOL OF LAW - MOOT COURT EXERCISE

IN THE HONBLEHIGH COURT BOMBAY, MAHARASHTRA

IN THE MATTER OF

HAMAJA MOHIDDIN KUTTY..............................................................PETITIONER

Vs
STATE OF MAHARASHTRA........................................................RESPONDENT

ON SUBMISSION TO THE HONBLE COURT MEMORIAL FILED ON BEHALF OF THE PETITIONER

MOST RESPECTFULLY SUBMITTED BY:

ABHINAV TREHAN 11LLB003 COUNSEL FOR THE RESPONDENT

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TABLE OF CONTENTS

1. INDEX OF AUTHORITIES.......................................................................................3 A. CASES REFERRED.......................................................................................3 B. STATUTES REFERRED...............................................................................3 C. WEBSITE........................................................................................................3 2. LIST OF ABBREVIATIONS......................................................................................4 3. STATEMENT OF JURISDICTION..........................................................................5 4. SUMMARY OF FACTS..............................................................................................6 5. ISSUED RAISED.........................................................................................................7 6. SUMMARY OF ARGUEMENTS..............................................................................8 7. ARGUEMENTS ADVANCED...................................................................................9 8. PRAYER.....................................................................................................................12

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INDEX OF AUTHORITIES

CASES REFERRED

STATUTES REFERRED 1. The Code Of Criminal Procedure (Amendment) Act, 2010 2. The Indian Penal Code, 1860 3. The narcotic drugs and psychotropic substance Act 1985 WEBSITES

1. www.indiankanoon.org 2. www.manupatra.com

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LIST OF ABBREVIATIONS

AIR Anr. Art. Honble No. Ors. Sec. SC u/s v.

All India Reporter Another Article Honourable Number Others Section Supreme Court Under Section Versus

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STATEMENT OF JURISDICTION

The Appellant humbly approaches the Honourable High Court of Bombay under under Section 167(2) of Criminal Procedure Code as well as on the merits of the case.

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SUMMARY OF FACTS

1. On

11th June, 2003 information was received by the Investigating Agency that two persons

were to arrive between 12 noon to 1 p.m. below Amar Mahal Bridge on the Eastern Express Highway.

2. The name of one of the persons was given as Hamja and the description of the person including the clothes he was wearing, was given.

3. It was further stated that said person would be arriving there to sell "Gard" powder to the customers.

4. The Pursuant to the said information, two panchas were called and a trap came to be arranged. 5. The applicant came to be apprehended and he was found in possession of 42 gms. of 'diecetylmorphine' i.e. heroin.

6. The applicant was arrested on 11th June, 2003 and produced before the special Court on 12th June, 2003.

7. On 12th June, 2003, hence, the applicant is entitled to bail under Section 167(2) of

Criminal Procedure Code and application for bail under Section 167(2) of Criminal Procedure Code came to be wrongly rejected by the learned Sessions Judge. 8. The charge sheet was filed on 11th August.

9. The application for bail preferred by the applicant on 18th September, 2003 under Section

167(2) of Criminal Procedure Code came to be rejected by the Special Court by order dated 8th October, 2003.

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ISSUES RAISED

1. Whether the Accused can be granted bail under Section 167(2) of Code of Criminal Procedure Code where an application is purely made on merit of the case?

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SUMMARY OF ARGUMENTS

1. Whether the Accused can be granted bail under Section 167(2) of Code of Criminal Procedure Code where an application is purely made on merit of the case? That It is presented before this Honble Court that the accused cannot be granted bail under section 167(2) when an application for bail is applied is on purely on merit.

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ARGUMENTS ADVANCED

Whether the Accused can be granted bail under Section 167(2) of Code of Criminal Procedure Code where an application is purely made on merit of the case? It is presented before this Honble Court that the accused cannot be granted bail under section 167(2) when an application for bail is applied is on purely on merit. In the present case, the applicant has tried to enforce his right only on 18th September, 2003 when the application for bail under Section 167(2) of Criminal Procedure Code came to be filed by him. The earlier application preferred by him on 6th August, 2003 cannot be said to be an application made to enforce his right under Section 167(2) Criminal Procedure Code. Hence, even if the said application was pending on 11th August, 2003 when the charge sheet came to be filed, it would not amount to an application being pending under Section 167(2) of Criminal Procedure Code. The applicant cannot make any use of the application which was filed by him on 6-8-2003 before the trial Court by contending that the application for bail was pending at the time when the charge sheet was not filed. It is clear that the indefeasible right accrued to an accused is enforceable only prior to the filing of the charge sheet and does not survive for enforcement on the charge sheet being filed. Once the charge sheet has been filed, the question of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail after filing of the charge sheet. Thus, it is clear that there is no question of enforcement of any right once the charge sheet is filed as the said right is extinguished the moment the charge sheet is filed. In the present case, the charge sheet was filed much earlier i.e. on 11th August, 2003 and thereafter on 18th September, 2003 the applicant for the first time tried to enforce his right for bail under Section 167(2) of Criminal Procedure Code, however, on 11th August, 2003 the right of the accused was already extinguished. It is clear that the right accrues in favour of the accused for being released on bail under Section 167(2) of Criminal Procedure Code and the accused is entitled to be released on bail if he is prepared to and furnishes the bail as directed by the Court. However, an application
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has to be filed for bail by the accused enforcing his right alleged to have been accrued in his favour on account of default on the part of investigating agency in filing the charge sheet within the stipulated period. The said application has to be preferred before the filing of the charge sheet. After filing of charge sheet the right is extinguished.

In the present case, the applicant has tried to enforce his right only on 18th September, 2003 when the application for bail under Section 167(2) of Criminal Procedure Code came to be filed by him. The earlier application preferred by him on 6th August, 2003 cannot be said to be an application made to enforce his right under Section 167(2) Criminal Procedure Code. Hence, even if the said application was pending on 11th August, 2003 when the charge sheet came to be filed, it would not amount to an application being pending under Section 167(2) of Criminal Procedure Code. The applicant cannot make any use of the application which was filed by him on 6-8-2003 before the trial Court by contending that the application for bail was pending at the time when the charge sheet was not filed and hence, he ought to be released on bail on that ground.

The further investigation is not precluded in respect of an offence after the report or challan is sent to the Court. On the basis of material which was there before the Court on 11th August, 2003, it was clear that the applicant was involved in a case under the N.D.P.S. Act. The charge sheet which was filed before the Court, also revealed that the sample of muddemal involved in the present case was sent to the C. A. and the report in relation thereto was awaited. Thus, there is no merit in this contention. No good ground is made to release the applicant on bail.

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PRAYER

Wherefore in the light of the facts presented, issues raised, arguments advanced, reasons given and authorities cited, the counsel for the Petitioner humbly pray before this Honble Court that may be pleased to:

The accused should not be granted bail under S.167 (2) of code of criminal procedure. OR Pass any other order that the Honble Court may deem fit and proper.

Place: Maharashtra

All of which is most respectfully submitted

Counsel for Respondent

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