TABLE OF CONTENTS

INDEX OF ABBREVIATIONS ………………………………………………………………3

INDEX OF AUTHORITIES.......................................................................................................4

STATEMENT OF JURISDICTION..........................................................................................6

STATEMENT OF FACTS...........................................................................................................7

STATEMENT OF ISSUES.........................................................................................................11

I. WHETHER THE PETITION IS MAINTAINABLE?

II. WHETHER THE INDUS COURT HAS THE JURISDICTION TO TRY
PANJKISTAN NATIONAL APPREHENDED FROM ITS TERRITORY?
III. WHETHER THE ARREST AND DETENTION BY THE INDUS ARMY IS
ILLEGAL?
3.1 WHETHER THE ACCUSED HAS A RIGHT TO BE ENLARGED ON
BAIL?
IV. WHETHER THE ACCUSED IS PROVIDED FREE AND FAIR TRIAL?

SUMMARY OF ARGUMENTS.................................................................................................12

I. WHETHER THE PETITION IS MAINTAINABLE?

II. WHETHER THE INDUS COURT HAS THE JURISDICTION TO TRY
PANJKISTAN NATIONAL APPREHENDED FROM ITS TERRITORY?
III. WHETHER THE ARREST AND DETENTION BY THE INDUS ARMY IS
ILLEGAL?
3.1 WHETHER THE ACCUSED HAS A RIGHT TO BE ENLARGED ON
BAIL?
IV. WHETHER THE ACCUSED IS PROVIDED FREE AND FAIR TRIAL?

ARGUMENTS ADVANCED…………………………………………………………………14

1|Page
 I. WHETHER THE PETITION IS MAINTAINABLE?
II. WHETHER THE INDUS COURT HAS THE JURISDICTION TO TRY
PANJKISTAN NATIONAL APPREHENDED FROM ITS TERRITORY?
III. WHETHER THE ARREST AND DETENTION BY THE INDUS ARMY IS
ILLEGAL?
3.1 WHETHER THE ACCUSED HAS A RIGHT TO BE ENLARGED ON
BAIL?
IV. WHETHER THE ACCUSED IS PROVIDED FREE AND FAIR TRIAL?

PRAYER…………………………………………………………………………………….…32

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 INDEX OF ABBREVIATION

S. NO. ABBREVIATIONS WORDS

1. & And

2. § Section

3. §§ Sections

4. ¶ Paragraph

5. Art. Article

6. A.I.R All India Reporter

7. Anr. Another

8. Ed. Edition

9. HC High Court

10. S.C.C. Supreme Court Cases

11. S.C.R. Supreme Court Records

12. SC Supreme Court

13. Nos. Numbers

14. Ex Exhibit

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 INDEX OF AUTHORITIES

JUDICIAL DECISIONS

 Jadhav Case (India V/s. Pakistan)

 Mohd. Ajmal Amir Kasab V/s. State of Maharashtra
 State vs Mohd. Afzal And Ors. 2003 VIIAD Delhi 1, 107 (2003) DLT 385, 2003 (71)
DRJ 178, 2003 (3) JCC 1669

BOOKS

 D.D. BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW (Prentice-Hall of India,

2nd ed., 2005)
 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA (Universal Law Publishing Co.,
4th ed. 2010).
 D.D. BASU, COMMENTARY OF THE CONSTITUTION OF INDIA (Lexis Nexis
Butterworths, 9th ed. 2015).
 M.P. JAIN, INDIAN CONSTITUTIONAL LAW (Lexis Nexis Butterworths Wadhwa,
6th ed., 2010).
 Indian Constitutional Law, Fifth Edition, Volume-I, M.P. Jain, Vedpal Law House.
 Commentary On The Constitution Of India, D.D. Basu , C.K. Thakker & S.S.
 Subramani & T. S. Doabia & B. P. Banerjee eds., Vol. 8, 8th ed. 2012

STATUTE/ TREATY
 The Constitution of India, 1950
 Code of Criminal Procedure, 1963
 Indian Evidence Act, 1872
DICTIONARIES
 Black's Law Dictionary, a law dictionary
 Merriam-Webster, a dictionary of American English
 Oxford English Dictionary

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 DATABASES REFERRED

 www.manupatra.com
 www.scconline.com
 www.westlawindia.com
 www.lexisnexis.com

INTERNATIONAL CONVENTIONS

 Vienna Declaration
 Universal Declaration of Human Rights (UDHR)

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 STATEMENT OF JURISDICTION

The Petitioner humbly submits this Memorandum for petitioner filed before this Honorable High
Court in pursuit of legal justice. The application invokes its jurisdiction under ‘Art. 136 of the
Constitution of India, 1950.’1 It sets forth the facts and the laws on which the claims are based.

1
“136. Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special
leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed
or made by any court or tribunal in the territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by
any court or tribunal constituted by or under any law relating to the Armed Forces.”

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 STATEMENT OF FACTS

PART I

Indus, officially known as the Republic of Indus, is located in South Central Asia, and is located
in both the eastern and northern hemispheres. It shares land borders with Panjkistan to the West,
Chino, Nelap, Bhatunand to the Northeast; and Surma and Angladesh to the East It is bounded
by the Indus Ocean on the South, the Arabic Sea on the Southwest, and the Bay of Bengal on the
Southeast. Statutory Rules and Regulations of Republic of Indus are Pari Materia to that of
Indian Republic. All International Treaties and Covenants of Indus Republic are same and
similar to that of Indian Republic.

PART II

Panjiksistan got separated from Indus in 1947 and since then relations between these two
countries have been strained. In 1948, Panjiksistan attacked Indus and occupied some part of the
State of Pannu and Pashmir, which was integral part of India. In 1965 and 1971, Panjiksistan
attacked Indus and faced humiliating defeat. In 1999, again Panjiksistan, resorted to another
misadventure and got its troops sneaked into Indus territories. Indus carried out military
operation and threw them out of Indus territories.

PART III

After tasting continuous defeat in conventional war, Panjiksistan realised that it could not
succeed in conventional war with Indus. It, therefore, started low intensity conflict with Indus
and established launch pads to strike terror attacks in Indus. It started harbouring and training
terrorists in occupied territory of State of Pannu and Pashmir. Terrorists have been killing
innocent persons and destroying Government properties. The terrorists enter Indus and carry out
terrorist attacks in Indus and return to Panjiksistan in case they survive.

PART IV

On 23 November 2015, twelve Lashkar –E- Khaiba terrorists, trained by Panjiksistan military
and spy agency ISO left Panjiksistan for Trombay via sea, which is a financial capital of Indus.
These terrorist entered three days later i.e. on 26 Nov 2015, by hijacking a boat owned by

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fisherman and killing them enroute. These terrorists targeted high profile places including
railway station terminals, premier hotels and hospitals killing innocent persons. In this attack,
more than 180 people including 20 police officers and 4 commandos were killed. Around 410
others were severely injured. In the counter attack five out of seven terrorist were killed, and
two terrorist were successful in escaping to Panjiksistan from the sea route by which they
entered. The terrorist attack was a professional commando operation of Panjiksistan military.

PART V

On 25 Sep 2016, the terrorists trained in Panjiksistan entered military units by donning army
uniforms and killed soldiers. The genocide caused by terrorists have been highly criticised at
international level. Not only this, State sponsored terrorists trained in Panjiksistan started
attacking Military installations and Units killing soldiers.

PART V (A)

Considering the increasing number of terrorist activities, the Indus Government could not take
these anymore and in right of private defence as enshrined in Article 51 of the UN Charter
decided to destroy the launch pads and terrorist hide outs and training areas in Panjiksistan and
Panjiksistan occupied Pammu and Pashmir.

PART VI

The surgical strike was carried out on 7 October 2016 in the Panjiksistan occupied Pammu and
Pashmir and destroyed launch pads and hideouts of terrorists. At international level, Indus
gathered support from all corners of the world. One Colonel, five Majors, two Captains, one
Subedar, two Naib Subedars, three Havildars, one Lance Naik and four Paratroppers of the 4th
and 9th Battalions of the Para Regiment took part in surgical strike.

PART VI (A)

In surgical strike, army was successful in destroying terrorist hide outs and launch pads and
caught one terrorist alive namely Masab Khan from Panjiksistan occupied Pammu and Pashmir
for getting operational intelligence and also to prove to the world that Panjiksistan was
sponsoring terrorism from the soil under its control. These terrorists were under the custody of

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the Army for 30 days, during which Army gathered vital information like who provided financial
aid to these terrorists etc. Investigation also revealed that the apprehended terrorist was the one
who had masterminded the terrorist attack in Indus on 26 November 2015. He also made
confessional statement to that effect before the Magistrate of competent jurisdiction.

PART VII

After 30 days, Army handed over the said terrorist to ATS for further proceedings; ATS is
specifically constituted to counter terrorism. The said terrorist was into custody of ATS for 70
days. As the part and parcel of proceedings, the terrorist was produced before the Court and he
applied for bail.

PART VIII

Aggrieved by the surgical strike, Panjiksistan approached the ICJ, alleging aggression by Indus
on its soil and prayed that the apprehended Panjiksistan national be handed over to the
Panjiksistan. Alleging that confession was forcibly extracted from Masab Khan and that he was
not involved in terrorist attack in Trombay on 26 November 2015. International Court of Justice
has not passed any order on the petition.

Investigation of full case was carried out in Indus. After FIR, the matter was handed to crime
branch for investigation.

PART IX

In the meantime, since the charge sheet, within statutory period of 90 days of the arrest, was not
filed before the court of competent jurisdiction, the accused moved the Court of competent
jurisdiction for grant of bail under Sub-§ 2 of § 167 of CrPC. The same was rejected. After
rejection of bail application, the magistrate committed the case to Court of Session of Competent
Jurisdiction. The accused was charged for various offences under Indus Penal Code, 1860, Arms
Act, 1959, Unlawful Activities (Prevention) Act, 1967, Passport (Entry into Indus) Act, 1920,
Prevention of Damage to Public Property Act, 1984 and Railways Act, 1989. The accused raised
following issues when he was committed to Court of Sessions.

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(a) That Court in Indus did not have jurisdiction to try Panjiksistan national apprehended from its
territory.

(b) That, he was not given consular access, which was in contravention of Vienna Convention on
Consular Relations.

(c) That, the arrest and detention by Indus Army was illegal, which will vitiate subsequent
proceedings.

(d) That, since the charge sheet was not filed within the statutory period of 90 days; the accused
had a right to be enlarged on bail. Since he was not enlarged on bail, he could not engage counsel
of his choice

(e)That, the accused requested to be defended by counsel of his choice that is Counsel from
Panjiksistan but the same was not provided to him and a counsel from Indus was provided to
him, which will seriously prejudice him in preparation of his defence.

(f) That, the accused did not expect fair trial in Indus specially considering adverse publicity in
the media.

PART X

The Public Prosecutor vehemently refuted the contentions of the accused and argued that these
are misconceived and farfetched contentions which are bereft of any merit.

All these issues were rejected by the Court below. Appeal was filed before the HC of Trombay
challenging the dismissal of the contentions of the accused, which was dismissed.

PART XI

The accused has filed SLP before the AC which is pending.

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 STATEMENT OF ISSUES

I.

WHETHER THE PETITION IS MAINTAINABLE?

II.

WHETHER THE INDUS COURT HAS THE JURISDICTION TO TRY

PANJKISTAN NATIONAL APPREHENDED FROM ITS TERRITORY?

III.

WHETHER THE ARREST AND DETENTION BY THE INDUS ARMY IS

ILLEGAL?

3.1 WHETHER THE ACCUSED HAS A RIGHT TO BE ENLARGED ON BAIL?

IV.

WHETHER THE ACCUSED IS PROVIDED FREE AND FAIR TRIAL?

11 | P a g e
 SUMMARY OF ARGUMENTS

I. WHETHER THE PETITION IS MAINTAINABLE?

The counsel on behalf of the Petitioner humbly submits that the Petition is maintainable owing to
the application of the Special Leave Petitions in India (SLP) holds a prime place in the Judiciary
of India, and has been provided as a "residual power" in the hands of Supreme Court of India to
be exercised only in cases when any substantial question of law is involved, or gross injustice
has been done. It provides the aggrieved party a special permission to be heard in Apex court in
appeal against any judgment or order of any Court/tribunal in the territory of India (except
military tribunal and court martial). Here, the accused is amid a crucial ‘substantial question of
law’ of the trial of Panjkistan national apprehended from the territory of Indus.

II. WHETHER THE INDUS COURT HAS THE JURISDICTION TO TRY

PANJKISTAN NATIONAL APPREHENDED FROM ITS TERRITORY?

The petition on behalf of the accused scrupulously lay the datum that Indus court has no
jurisdiction to try Panjkistan national apprehended from its territory, Indus.

kIn the Public International Law, “Extradition” means the surrender an accused by one nation to
another, for trial and punishment, or convicted of an offence within the jurisdiction of the latter.
To effect the Extradition, there must be an extradition agreement between two countries.

There is an extradition agreement between Indus and Great Britain and with some other
countries. But there is no such ‘Extradition Agreement’ between Indus and Panjkistan. So the
failure to have an ‘Extradition Agreement’ provides settled resistance to Indus court to have no
jurisdiction to try a Panjkistan national apprehended from its territory.

III. WHETHER THE ARREST AND DETENTION BY THE INDUS ARMY IS

ILLEGAL?

12 | P a g e
The counsel on behalf of the accused modestly prays that the arrest and detention by the Indus
army is illegal as the army brought the Panjiksistan resident from his soil, Panjiksistan to Indus
without following any such procedure of arrest of the land, Indus.

3.1 WHETHER THE ACCUSED HAS A RIGHT TO BE ENLARGED ON

BAIL?

The petitioner has already projected the vacuum laid by Indus against the accused which has
been intensified by withholding the accused by the Indus army for 30 days which was
procrastinated the duration to apply for bail.

IV. WHETHER THE ACCUSED IS PROVIDED FREE AND FAIR TRIAL?

The counsel on behalf of the petitioner would humbly uphold the statistic that the accused was
not provided with the fair trial as he was being tried on the soil far distant from his motherland.
He was not on his own soil, amidst all unidentified folks and unfamiliar laws.

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 ARGUMENTS ADVANCED

I. WHETHER THE PETITION IS MAINTAINABLE?

1. The counsel on behalf of the Petitioner humbly submits that the Petition is maintainable
owing to the accused who is amid a crucial ‘substantial question of law’ of the trial of
Panjkistan national apprehended from the territory of Indus.
The scope of power vested with the Supreme Court of India under Art. 136: The
constitution of India vest “discretionary power” in the Supreme Court of India.
The Supreme Court of India may in its discretion be able to grant special leave to appeal
from any judgment or decree or order in any matter or cause made or passed by any
Court/tribunal in the territory of India.
The Supreme Court of India may also refuse to grant the leave to appeal by exercising its
discretion.
An aggrieved party from the judgment or decree of high court cannot claim special leave
to appeal as a right but it is privilege which the Supreme Court of India is vested with and
this leave to appeal can be granted by it only.
An aggrieved party can approach the Apex Court under Art. 136 in case any
constitutional or legal issue exists and which can be clarified by the Supreme Court of
India.
This can be heard as civil or criminal appeal as the case may be.
This is “residual power” vested with the Supreme Court of India-
2. Judgments of various Courts of India on SLP:
There is catena of judgments mentioning about the scope of power of Supreme Court
under Art. 136, the maintainability of special leave petitions. The below mentioned are
some of prominent judgments mentioning about SLP.
The Constitutional Bench observed that the Supreme Court is vested “wide discretionary
power” under this article and this power is required “to be exercised sparingly and only in
exceptional cases”.
The Court also observed that a more or less uniform standard should be adopted in
granting Special Leave in wide range of matters which can come up under this Art.The
court further observed that “this Court” should not grant special leave, unless it is shown
that “exceptional and special circumstance exist”, that “substantial and grave injustice”
14 | P a g e
 has been done and the case in question presents features of sufficient gravity to warrant a
review of the decision appealed against.
The power conferred upon the Supreme Court of India is of “residual nature” and is a
“discretionary power”.
3. Art. 136 does not confer upon a litigant a right to appeal against any order or judgement
but vest the Supreme Court of India with a discretionary power to interfere with the
orders of the lower Courts only in case of exceptional character where gross injustice has
been carried out.
4. The Supreme Court observed that Article 136 is of 2 distinct stages.
The Court observed that while hearing the petition for special leave to appeal, this court
is called to see whether petitioner should be granted such a leave or not. The Court
observed that while hearing such a petition, this Court is not exercising its appellate
jurisdiction and is merely exercising its discretionary power to grant or not grant leave to
appeal.
5. The court observed that the petitioner is still outside the gate of entry though is aspiring
to enter the Appellate arena of Supreme Court and whether he enters or not shall depend
upon the fate of the petition for special leave.
The court further observed that if the petition seeking grant of special leave is dismissed
then it is expression of the opinion of the Court that a case invoking appellate jurisdiction
of the Court was not made out. And in case, the leave is granted then the appellate
jurisdiction of the Court stands invoked. The court also observed that the Judgment,
decree or order against which leave to appeal is sought continues to be final and binding
even in case the petition for special leave to appeal is filed and it is only in case the leave
is granted that the finality of the judgment or order is put in jeopardy though it continues
to be binding and effective between the parties unless it is nullity or the court passes
specific order suspending the operation or execution of the judgment or order.
6. The court relying on catena of judgments concluded that in case there is dismissal at the
stage of special leave without a speaking order or reasons then there shall be no res-
judicata and no merger. And it can only be said that it was not a fit case where special
leave could be granted. The court further said that it is not correct to assume that the court
has decided implicitly all the questions in relation to merits of case and it is open for the

15 | P a g e
 litigant to approach the High court under Article 226 for review of decision and there
could be a possibility whereby the Supreme Court has dismissed the petition only
because the litigant can approach the High Court under Article 226.
7. The court said that just because the special leave is not granted does not mean that the
aggrieved party is precluded from approaching High Court and it would not be just to
deprive the aggrieved person from seeking relief in review jurisdiction of the High Court
in case the case is made out merely on the ground that special leave petition under Art.
136 is stood rejected by Supreme Court by a non-speaking order.
8. The court observed that the jurisdiction conferred by Article 136 of the Constitution is
divisible into two stages. First stage is up to the disposal of prayer for special leave to file
an appeal. The second stage commences if and when the leave to appeal is granted and
special leave petition is converted into an appeal.
9. The court observed that under Article 136 of the Constitution, the Supreme Court may
reverse, modify or affirm the judgment-decree or order appealed against while exercising
its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing
of petition for special leave to appeal. The doctrine of merger can therefore be applied to
the former and not to the latter.2

10. The Supreme Court observed with regard to scope of Article 136 that Article 136 of the
Constitution is not a regular forum of appeal at all. It is a “residual” provision which enables the
Supreme Court to interfere with the judgment or order of any court or tribunal in India in its
discretion.3

11. This Court observed that Article 136 is an “extraordinary jurisdiction” vested by the
Constitution in the Supreme Court with implicit trust and faith, and extraordinary care and
caution has to be observed in the exercise of this jurisdiction. The court further observed that Art.
136 does not confer a right of appeal on a party but vests a vast discretion in the Supreme Court
meant to be exercised on the considerations of justice, call of duty and eradicating injustice.4

2
Kunhayammed Vs. State of Kerala (2000) 245 ITR 360 (SC)
3
N. Suriyakala Vs. A. Mohandoss and Others (2007) 9 SCC 196
4
Tirupati Balaji Developers Pvt. Ltd. Vs. State of Bihar AIR 2004 SC 2351

16 | P a g e
 12. This Court observed that the discretionary power of the Supreme Court is plenary in
nature in the sense that there are no words in Article 136 itself qualifying that power. The
court further said the very conferment of the discretionary power defies any attempt at
exhaustive definition of such power. The power is permitted to be invoked not in a
routine fashion but in very exceptional circumstances as when a question of law of
general public importance arises or a decision sought to be impugned before the Supreme
Court shocks the conscience. This overriding and exceptional power has been vested in
the Supreme Court to be exercised sparingly and only in furtherance of the cause of
justice in the Supreme Court in exceptional cases only when special circumstances are
shown to exist.5

13. The court observed that Article 136 like Article 226 is a discretionary remedy and the
Court is not bound to interfere even if there is error of law or fact in the impugned order.
The use of the words in Article 136 clearly indicates that Article 136 does not confer a
right of appeal upon any party but merely vests discretion in the Supreme Court to
interfere in exceptional cases.
14. The court further observed that a constitutional bench should be formed laying down
some broad guidelines as to what kind of cases should be presented under Article 136.
The Supreme Court observed that in event any substantial question of general importance
is not involved or similar questions are not pending before the Supreme Court, the
Supreme Court may not entertain SLP directly against the ruling of AAR thereby laying
down the precedent that Supreme court shall entertain SLP only in case of substantial
question of law involved or similar question is pending in court and the aggrieved party
may approach the High court under Article 226/227.6
The article talk about “special leave to appeal by the Supreme Court” reads: “(1)
Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant special

5
Jamshed Hormusji Wadia Vs. Board of Trustees, Port of Mumbai AIR 2004 SC 1815
6
Mathai @ Joby v. George ( (2010) 4SCC 358 )

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leave to appeal from any judgment, decree, determination, sentence or order in any case or
matter passed or made by any Court or Tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or
made by any court or tribunal constituted by or under any law relating to the Armed Forces.” 7
Special leave Petition (SLP) provides the aggrieved party a special permission to be heard in
Apex court in appeal against any judgment or order of any court/tribunal in the territory of
India.8
15. It was well said by the hon’ble Supreme Court in the case of Pritam Singh vs. The State 9
that, “The Supreme Court will not grant special leave to appeal under Art. 136 of the

Constitution unless it is shown that:

1) Exceptional and special circumstances exist,

2) Substantial and grave injustice has been done

3) And the case in question presents features of sufficient gravity to warrant a review of the
decision appealed against.”

A Special Leave Petition (SLP) is exercised only when there is “substantial question of law”
involved so as presenting sufficient gravity to review the decision appealed against, or gross
injustice has been done. 10

The “Substantial questions of law arising in the case, “Masab Khan V/s Union Of India” are:

 WHETHER THE INDUS COURT HAS THE JURISDICTION TO TRY

PANJKISTAN NATIONAL APPREHENDED FROM ITS TERRITORY?
 WHETHER THE ACCUSED IS PROVIDED FREE AND FAIR TRIAL?

II. WHETHER THE INDUS COURT HAS THE JURISDICTION TO TRY

PANJKISTAN NATIONAL APPREHENDED FROM ITS TERRITORY?

7
Article 136 of the constitution of India
8
Indian constitutional law, fifth edition, volume-i, M.P.Jain, Vedpal law House.
9
AIR 1950 SC 169
10
Constitutional Law of India, Dr. J N Pandey, Central Law Agency

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 16. The petition on behalf of the accused scrupulously lay the datum that Indus court has no
jurisdiction to try Panjkistan national apprehended from its territory, Indus.

In the Public International Law, “Extradition” means the surrender an accused by one nation to
another, for trial and punishment, or convicted of an offence within the jurisdiction of the latter.
To effect the Extradition, there must be an extradition agreement between two countries.

There is an extradition agreement between Indus and Great Britain and with some other
countries. But there is no such ‘Extradition Agreement’ between Indus and Panjkistan. So the
failure to have an ‘Extradition Agreement’ provides settled resistance to Indus court to have no
jurisdiction to try a Panjkistan national apprehended from its territory.

17. Extradition is the surrender by one State to another of a person desired to be dealt with
for crimes for which he has been accused or convicted and which are justifiable in the
courts of the other States. Surrender of a person within the State to another State whether
a citizen or an alien is a political act done in pursuance of a treaty or an arrangement ad
hoc.

A Request for Extradition can be initiated against a fugitive criminal, who is formally
accused of, charged with, or convicted of an extradition offence.

‘Fugitive Criminal’ means a person who is accused or convicted of an extradition offence

within the jurisdiction of a foreign State and includes a person who, while in India,
conspires, attempts to commit or incites or participates as an accomplice in the
commission of an extradition offencein a foreign State.
18. LEGISLATIVE BASIS FOR EXTRADITION IN INDIA-

The Extradition Act 1962 provides India’s legislative basis for extradition. The Act
consolidated the law relating to the extradition of fugitive criminals from India to foreign
states. It was substantially amended by Act 66 of 1993.
"The Government of India has entered into bilateral Extradition Treaties with 42
countries to bring speed and efficiency to the process of extradition. Besides, India has

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 entered into Extradition Arrangements with 9 more countries. India is also a party to
regional extradition treaties such as the London Scheme (Commonwealth Scheme for the
Rendition of Fugitive Offenders 1966), an arrangement less than treaty status which is
non-binding at international law and does not impose legal obligations on participants
unlike an Extradition Treaty. The legal basis for Extradition with States with whom India
does not have an Extradition Treaty ("non-Treaty States) is provided by Section 3(4) of
the Indian Extradition Act, 1962 which says that the Central Government may, by
notified order, treat any convention to which India and a foreign state are parties, as an
Extradition Treaty made by India with that foreign state providing for extradition in
respect of the offences specified in that Convention. India is also a party to the 1997
International Convention for the Suppression of Terrorist Bombings. This also provides a
legal basis for Extradition in Terror Crimes.
19. In May 2011, the Indian Government ratified two UN Conventions - the United Nations
Convention against Corruption (UNCAC) and the United Nations Convention against
Transnational Organised Crime (UNCTOC) and its three protocols. Article 16 of
UNCTOC can be used as a basis for extradition of fugitive criminals accused/convicted
of offences that are classified as Organized Crimes. While ratifying the Convention,
Government of India declared that "In pursuance of Article 16, paragraph 5(a) of the
Convention, the Government of India shall apply the Convention as the legal basis for
cooperation on extradition with other States Parties to the Convention. Indian Law
Enforcement Agencies can seek to make use of the provisions of the convention
accordingly.

Countries with which India has Extradition Treaties/Arrangements

India can make an extradition request to any country. While India’s treaty partners have
treaty obligations to consider India’s requests, in the absence of a treaty, it is a matter for
the foreign country to consider, in accordance with its domestic laws and procedures,
whether the country can agree to India’s extradition request on the basis of an assurance
of reciprocity. Similarly, any country can make an extradition request to India.

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 Designated Central Authority in India for Extradition Matters

The Ministry of External Affairs (MEA), Government of India, is the Central Authority
for all incoming and outgoing requests for Extradition. CPV Division handles extradition
matters in the Ministry of External Affairs.
20. EXTRADITION LAWS IN INDIA:

In India, the law regulating the surrender of a person to another country or the request for arrest
of a person in a foreign land.11 According to the act, any conduct by a person in India or
elsewhere mentioned in a list of extradition offences punishable with a minimum one year of
imprisonment qualifies for an extradition request.

The process of extradition is to be initiated by the central government. Currently, India has
extradition treaties with 38 countries.

If there is no treaty with the country from which the fugitive is to be extradited, then there aren’t
any defined guidelines for the law to be applied and procedure to be followed. In such a scenario,
a lot depends on the cooperation and coordination between different authorities of the two
countries. Another option is to resort to a Mutual Legal Assistance Treaty wherein both countries
agree to exchange information in order to enforce criminal laws.

If the extradition request comes from two or more countries, then the government has the right to
take the call to decide which country is fittest for the request. Since 2002, India has extradited 44
fugitive criminals to various countries. On the contrary, India has got 61 criminals extradited to
itself from different countries since 2002.

11
The Extradition Act, 1962,

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22 | P a g e
 III. WHETHER THE ARREST AND DETENTION BY THE INDUS ARMY IS
ILLEGAL?

23 | P a g e
The counsel presenting the petitioner in the forum would humbly put up the contention that the
Indus Army did keep the accused under arrest and detention was illicit.

In surgical strike, army was successful in destroying terrorist hide outs and launch pads and
caught one terrorist alive namely Masab Khan from Panjiksistan occupied Pammu and Pashmir
for getting operational intelligence and also to prove to the world that Panjiksistan was
sponsoring terrorism from the soil under its control. These terrorists were under the custody of
the Army for 30 days.12

21. The army brought the Panjiksistan resident from his soil, Panjiksistan to Indus without
following any such procedure of arrest.

The term “Arrest” in Indian law, Criminal procedure Code, 1973 in its chapter V (section 41 to
60) deals with Arrest of a person. Ironically, Code has not defined the term “Arrest”. Every
deprivation of liberty or physical restraint is not arrest. Only the deprivation of liberty by legal
authority or at least by apparent legal authority, in a professionally competent and adept manner
amounts to arrest. Thus, we can say arrest means ‘apprehension of a person by legal authority
resulting in deprivation of his liberty’. An arrest consists of taking into custody of another person
under authority empowered by law for the purpose of holding or detaining him to answer a
criminal charge and preventing the commission of a criminal offence. However, a person against
whom no accusation of crime has been made may be arrested /detained under a statute for certain
purposes like removal in safe custody from one place to another, for example – removal of a
minor girl from a brothel. One thing to be noted that ‘custody’ and ‘arrest’ don’t have same
meaning. Taking of a person into judicial custody is followed after the arrest of the person by
Magistrate on appearance or surrender. In every arrest there is custody but not vice versa. Thus,
mere taking into custody of a person an authority empowered to arrest may not necessarily
amount to arrest. This code propose two types of arrests: (i) arrest made in pursuance of a
warrant issued by a magistrate (ii) arrest made without such a warrant but made in accidence
with some legal provision permitting such arrest.

22. PERSONS AUTHORIZED TO ARREST:

12
¶ PART VI (A)

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Arrest can be made by police officer, Magistrate or any private person, like you or me can also
arrest a person but that can made only in accordance with some legal provision permitting such
arrest. The code exempts the members of Armed forces from being arrested for anything done by
them in discharge of their official duties except after obtaining the consent of the government
(Sec. 45).

Any private individual may arrest a person only when the person a proclaimed offender and the
person commits a non bailable offence and cognizable offences in his presence (sec. 43). Any
magistrate (whether Executive or judicial) may arrest a person without a warrant (sec. 44).
Under section 41, Arrest by police officer can be made without warrant only in cognizable
offences (sec.2(c)) and with warrant in non- cognizable offence (sec 2 (l)). Cognizable offences
are of more serious nature as compare to non cognizable offences i.e. Murder, kidnapping, theft,
etc.

23. PROCEDURE TO HOW ARREST IS MADE-

Sec. 46 describes the mode in which arrests are to be made (whether with or without warrant). In
making an arrest the police officer /other person making the same actually touches or confines
the body of the person to be arrested unless there be a submission to custody by words or action.
When the police arrests a person in execution of a warrant of arrest obtained from a magistrate,
the person so arrested shall not be handcuffed unless the police have obtained orders from the
Magistrate in this regard. The person making an arrest may use ‘all means’ necessary to make
arrest if person to be arrested resists or attempts to evade the arrest. A police officer may, for the
purpose of arresting without warrant any person whom is authorized to arrest, pursue such
person into any place in India (sec 48). Arrested person shall not be subjected to unnecessary
restraint and physical inconvenience unless it’s necessary to do so to prevent his escape (sec. 49).

24. RIGHTS OF ARRESTED PERSONS -

Arrest of a person is made in order to ensure his presence at the trial in connection with any
offences to which he is directly or indirectly connected or to prevent the commission of a
criminal offence. In law, there is principle of “presumption of innocence till he has proven
guilty” it requires a person arrested to be treated with humanity, Dignity and respectfully till his

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guilt is proof. In a free society like ours , law is quite careful toward one’s “personal liberty” and
doesn’t permit the detention of any person without legal sanction. Even article 21 of our
constitution provides: “No person shall be deprived of his life or personal liberty except
according to procedure established by law”. The procedure contemplated by this article must be
‘right, just and fair’ and not arbitrary, fanciful or oppressive. The arrest should not only be legal
but justified also, Even the Constitution of India also recognize the rights of arrested person
under the ‘Fundamental Rights ‘and here I will inform you about those rights :-

 Right to be informed of the grounds of arrest under sec. 50 of crpc and article 22 of
Indian Constitution, it’s a fundamental right to be informed. It is the duty of the police
officer to inform you and also tell whether the offence is bailable or non bailable.
Normally, Bailable offences are those where bailable can be granted and it is right of the
person to be granted bail and Non- bailable offences are where bailable can’t be granted
generally and it’s the discretion of the court.
 In non- cognizable cases ,arrest are made with warrant and the person going to be
arrested have a right to see the warrant under Sec. 75 of crpc. Warrant of arrest should
fulfill certain requirements such as it should be in writing , signed by the presiding officer
, should have seal of court , Name and address of the accuse and offence under which
arrest is made. If any of these is missing, warrant is illegal.
 Under sec. 41 , police have a power to arrest a person without warrant as prompt and
immediate arrest is needed , no time to approach magistrate and obtain a warrant for
example in case where serious crime is has been perpetrated by a dangerous person or
where chances of that person absconding unless immediately arrested. Section 41 got
amended in 2008/2010 because of misuse of power conferred by this section to police
and amendments targeted the power conferred to police officer must be exercised after
reasonable care. Some clauses were put to this section such as police officer must act
reasonably that such arrest is necessary. Not in all cases arrest in necessary, Notice of
appearance before police officer can be made if reasonable complaint has been made
,credible information has been received and suspicion exits of cognizable offence and if
concern person continues to comply with such notice and appears then arrest is not
necessary but he don’t, arrest can be made.( sec 41A)

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  The police officer must be wearing a clear, visible and clear identification of his name
which facilitate easy identification. A memo of arrest must be prepared at the time of
arrest – (i) attested by least one witness, it can be family member or member of locality
where arrest is made (ii)counter signed by arrested person.
 Right of arrested person to meet an advocate of his choice during interrogation under sec.
41D and sec. 303 crpc.
 Arrested person have a right to inform a family member, relative or friend his arrest U/
sec 50 of crpc.
 Arrested person have right not to be detained for more than 24hrs, without being
presented before magistrate, it is to prevent unlawful and illegal arrests. This right is
fundamental right under article 22 of Indian constitution and supported under section 57
and 76 of crpc.
 Arrested person have right to be medically examined (Sec 54,55A) the person who is
arrested should be given the right to have his body examined by the medical officer when
is produced before a magistrate or at any time under custody, with a view to enabling him
to establish that the offence with which he is charged was not committed by him or that
he was subjected to the physical torture. With the insertion of 55A, “it shall be duty of a
person having custody of an accused to take reasonable care of the health and safety of
the accused” and it attempt to take care of “custodial violence”( torture, rape, death in
police custody/lock-up) to some extent.
 Arrested person have right to remain silent under Sec. 20(3) of Indian constitution so that
police can’t extract self – incriminating statement from a person without will or without
his consent.

The Indus law to have projected or enshrined such provisions regarding the procedure of arrest
as well the rights and privileges of the arrested person, but the accused has been kept at bay from
all the provisions of the aforementioned rights and privileges under the CrPC of the Indus.

In surgical strike, army was successful in destroying terrorist hide outs and launch pads and
caught one terrorist alive namely Masab Khan from Panjiksistan occupied Pammu and Pashmir

27 | P a g e
for getting operational intelligence and also to prove to the world that Panjiksistan was
sponsoring terrorism from the soil under its control.13

The counsel humbly projects the two most selfish motives of the Republic of Indus, just to
project a status at the international podium over the other countries.

These terrorists were under the custody of the Army for 30 days, during which Army gathered
vital information like who provided financial aid to these terrorists etc. Investigation also
revealed that the apprehended terrorist was the one who had masterminded the terrorist attack in
Indus on 26 November 2015. He also made confessional statement to that effect before the
Magistrate of competent jurisdiction.14

The counsel puts forth the sub-contention of the accused that the confession made was not
voluntary and thus, the revelations made at the investigation had been made by no such authority
because the moot proposition holds no such mention such. So the revealed info from the
investigation cannot be held reliable.

3.1 WHETHER THE ACCUSED HAS A RIGHT TO BE ENLARGED ON

BAIL?
25. The petitioner has already projected the vacuum laid by Indus against the accused which
has been intensified by withholding the accused by the Indus army for 30 days.

After 30 days, Army handed over the said terrorist to ATS for further proceedings; ATS is
specifically constituted to counter terrorism. The said terrorist was into custody of ATS for 70
days. As the part and parcel of proceedings, the terrorist was produced before the Court and he
applied for bail.

Aggrieved by the surgical strike, Panjiksistan approached the ICJ, alleging aggression by Indus
on its soil and prayed that the apprehended Panjiksistan national be handed over to the
Panjiksistan. Alleging that confession was forcibly extracted from Masab Khan and that he was
not involved in terrorist attack in Trombay on 26 November 2015. International Court of Justice
has not passed any order on the petition.

13
¶ PART VI (A)
14
Supra Note No.9

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Investigation of full case was carried out in Indus. After FIR, the matter was handed to crime
branch for investigation.

26. In the meantime, since the charge sheet, within statutory period of 90 days of the arrest,
was not filed before the court of competent jurisdiction, the accused moved the Court of
competent jurisdiction for grant of bail under Sub-§ 2 of § 167 of CrPC. The same was
rejected. 15

The counsel would just like to draw the kind attention to the fact as stated in the Moot
Proposition, that owing to the unnecessary procrastination of the Indian Army and the ATS
denied the accused to have applied for bail and as well as the counsel of his own choice.

IV. WHETHER THE ACCUSED IS PROVIDED FREE AND FAIR TRIAL?

27. The counsel on behalf of the petitioner would humbly uphold the statistic that the accused
was not provided with the fair trial as he was being tried on the soil far distant from his
motherland. He was not on his own soil, amidst all unidentified folks and unfamiliar
laws.

Since, the charge sheet was not filed within the statutory period of 90 days; the accused had a
right to be distended on bail. Since he was not enlarged on bail, he could not engage counsel of
his own choice.16

28. Arts. 21, 22(1) and 39-A of Indus Constitution- Right to free legal aid - Consequences of
failure to provide a lawyer at pre-trial stage compared with such failure at trial stage - At
trial stage such failure always vitiates trial unless accused voluntarily in
clear/unambiguous terms makes an informed decision to defend himself personally
without assistance of a lawyer However, at pre-trial stage such failure may not vitiate
trial and would depend upon facts of each case - Such failure at pre-trial stage would
vitiate trial if such failure has caused some material prejudice to accused.

15
¶ PART IX
16
Supra Note No. 11

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The accused requested to be defended by counsel of his choice that is Counsel from Panjiksistan
but the same was not provided to him and a counsel from Indus was provided to him, which will
seriously prejudice him in preparation of his defence. 17

Arts. 21, 22(1) and 39-A of Indus Constitution- Right to free legal aid, right to consult and be
defended by a lawyer - has a constitutional duty to provide an accused with a lawyer even if he
does not ask for one and remains silent, unless the accused voluntarily in clear/unambiguous
terms makes an informed decision to defend himself personally without assistance of a lawyer.
The accused was provided with the lawyer to defend himself but not with the counsel of his
choice that is Counsel from Panjiksistan.

29. The accused did not expect fair trial in Indus especially considering adverse publicity in
the media. 18

The accused did put up the adverse Media role - Reckless media coverage - Irresponsibility of
media, strongly deprecated - Reckless TV coverage just for profit sake (without any
consideration for national security) simply to raise the viewer ratings of respective TV channels,
deprecated - This is a case was expectedly to go against the accused as the Media had already
publicized the accused in unscrupulous custom.

30. The Public Prosecutor vehemently refuted the contentions of the accused and argued that
these are misconceived and farfetched contentions which are bereft of any merit. 19

The Public Prosecutor who earlier represented the accused at the court strongly disproved the
contentions of the accused rather than acting defensively to the accused. The Public Prosecutor
misguided the contentions of the accused in implausible mode and did put the words against the
accused.

Certain procedural rights which have been evolved by the Supreme Court have not been
followed in this case. In the case of Nandini Satpati V/s. P.L. Dani20 legal representation was

17
¶ PART IX
18
Supra Note No. 13
19
¶ PART X
20
1978 SCR (3) 608

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allowed during custodial interrogation and in the case of A.K. Roy V/s. Union of India21 the
Supreme Court held that even if a accused is denied legal representation statutorily he or she is
entitled to a common right of representation through a friend. In M.H. Hoskot v. State of
Maharashtra22 , the right to free legal aid has been given a constitutional status by including it in
Article 21 of the Indian Constitution. Masab Kasab have been indefensible in court of law with
the view of the brutal acts committed by him and his accomplices but every person in India, even
an alien is entitled for a free and fair trial. So, while putting this issue to rest we can conclude
that the accused did not get a free and fair trial.

21
1982 SCR (2) 272
22
1979 SCR (1) 192

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 PRAYER

In the light of the issues raised, arguments advanced and authorities cited, the counsel for the
Petition humbly prays that the Hon’ble Court be pleased to adjudge, hold and declare:

1. That, the petition filed by petitioner is maintainable in the court of law.

2. That, to direct the Government of India to send this case to the International Criminal
Court.

And pass any order that this Hon’ble Supreme Court may deem fit in the interest of equity,
justice and good conscience.

Sd/-

(Counsel for Petitioner)

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