K.K. Luthra Appellant

URN: 1460
XIV K.K. LUTHRA MEMORIAL MOOT COURT, 2018
IN THE HON’BLE FEDERAL COURT OF HALLBACH
MILITIA ...................................................................................APPELLANT
JUPITER HESTIA........................................................................APPELLANT
v.
STATE OF HALLBACH............................................................RESPONDENT
MEMORIAL ON BEHALF OF THE APPELLANT

THE K.K. LUTHRA MEMORIAL MOOT COURT, 2018
TABLE OF CONTENTS
INDEX OF AUTHORITIES..................................................................................................4
STATEMENT OF JURISDICTION.....................................................................................7
STATEMENT OF FACTS.....................................................................................................8
STATEMENT OF ISSUES...................................................................................................10
WRITTEN PLEADINGS.....................................................................................................11
1. The entire investigation and trial pursuant to orders passed by the Hallbach Federal
Court in Re X and Y was contrary to the process of law and thus the convictions should
be set aside.
1.1. The order passed by the Hallbach Federal Court on 1st August 2010 In Re X and Y was
Unconstitutional...........................................................................................................................
1.2. The entire investigation conducted by the Special Investigation Team was contrary to
process of law...............................................................................................................................
1.3. FIR had not been registered under Sec 154 of Cr.PC after the militia were arrested which
makes the investigation by SIT questionable and
malafide........................................................................................................................................
1.4. The Militia who were arrested were not produced before the Magistrate within 24 hours
of arrest which violates Sec 57 Cr.PC, Article 21 and 22(2) of the Constitution of
India.............................................................................................................................................
1.5. After the investigation conducted by the SIT there is no mention of submission of final
report under Section 173(2) and 173(5) and giving of copies to the accused under
173(7)...........................................................................................................................................
1.6. The trial conducted by the Special Court under the Special Courts Act, 2010 was
invalid...........................................................................................................................................
2. The arrest and prosecution of diplomat Jupiter Hestia was contrary to law and hence
the conviction should be set aside.
2.1. The arrest and prosecution of the Jupiter Hestia was in violation of the Extradition Act,
1962 and the diplomatic protest by Hoko...................................................................................
2.2. The arrest and prosecution of Jupiter Hestia was against the sovereign or state
immunity......................................................................................................................................
2.3. The arrest and prosecution of diplomat Jupiter Hestia was in violation of the Article 40 of
the Vienna Convention on Diplomatic Relations, 1961...............................................................
Page 2
3. The decision of the Special Court for acquittal of Dr. Ares and Jupiter Hestia for the
allegation of theft was in accordance with the law and fact; hence it should not be
reversed.
3.1. The decision of Special Court for acquittal of Dr. Ares was in accordance with the law
and fact.........................................................................................................................................
3.1.1. There was no requisite Mens Rea.............................................................................
3.1.2. There was no Actus Reus on the part of the Accused...............................................
3.2. The decision of Special Court for the acquittal of Jupiter Hestia was in accordance with
the law and fact............................................................................................................................
PRAYER FOR RELIEF......................................................................................................26
Page 3
INDEX OF AUTHORITIES
A. TABLE OF CASES
SR.NO NAME OF CASE AND CITATION
1. Amarinder Singh v. Prakash Singh Badal, (2009) 6 SCC 260: (2009) 7 SCALE 382
2. Antoine Argound case, ILR, Vol.45, p. 90
3. Ashok Datta Naik & others v. State, 1979 Cri. L.J. (N.O.C) 95.
4. Ashraf Khan v. State of Gujarat, AIR 2013 SC 217(230): 2013 CrLJ 226
5. Attorney General for Onatario v. Attorney General for Canada, (1912) AC 571
6. B. Sharma Rao v. Union Territory of Pondicherry, AIR 1967 SC 1480[SC]
7. Babu Singh v. State of U.P., AIR 1978 SC 527, at 529
8. Bachan Singh v. State of Punjab, (1979) 3 SCC 727 [SC]
9. Bijay Singh v. State, AIR 2002 SC 1949
10. Central Bureau of Investigation, Hyderabad v. Narayan Rao, (2012) IV Cri. L.J.
4610 (S.C.)
11. Charu Kishore Mehta v. State of Maharastra, 2011 CrLJ 1486 (1492)
12. Chittaranjan Mirdha v. Dulal Ghosh, 2009 CrLJ 3430 (3432) (SC)
13. Coffin v. United States, 156 U.S. 432, 453 (1895)
14. Compania Naviera Vascongado v. S.S Christina, [1938] AC 485
15. Dinesh Dalmia v. CBI, (2007) 8 SCC 770
16. Duff Development Co. v. Kelantan Government,[1924] A.C. 797,805
17. Eddy v. Niman, (1981) 73 Cr.App
18. G. Someshwar Rao v. Samineni N. Rao, (2009) 14 SCC 677: (2009) 10 SCC 268
19. Gunpati v. Nafisul Hasan, AIR 1954 SC 636
20. Harla v. State of Rajasthan, 1951 AIR 467
21. Hiralal Harilal Bhagwati v. CBI, New Delhi, 2003 Cri. LJ 3041 (SC)
22. In Re Duty on Non- Agricultural Property,(1960) 49 CWN 9 (FR)
23. In Re Implementation of the Indo-Pakistan Agreement, AIR 1960 SC 845: 1960 (3)
SCR 280;
24. In re Kerala Education Bill, 1957, (1959) SCR 995
25. In re Levy of Estate Duty, (1944) FCR 317
26. ITC Bhadrachalam Paperboards & Anr. v. Mandal Revenue Officer, Andhra
Pradesh and Ors., JT 1996 (8) 67
27. Ivey v. Genting Casinos (UK) Ltd. t/a Crockfords, [2017] UKSC 67
28. Jadhav Case (India v. Pakistan)
29. Jayendra Vishnu Thakur v. State of Maharastra, (2009) 7 SCC 104: (2009) 7
SCALE 757
30. Kashmira Singh v. State of Punjab, AIR 1977 SC 2147
31. Kehar Singh and Anr v. Union of India and Anr, ’88 A.S.C 1883, (1988) 2 Supp.
S.C.R. 24
32. Khatri(II) v. State of Bihar, 1981 SCC (1) 627
33. Lalita Kumari v. Govt. Of UP, (2014) 2 SCC 1
34. Lambert, [2001] UK HL 37
35. M.K. Sabha v. A.Faizullbhai, AIR 1976 SC 1455[SC]
36. M.R.Mohan Karnaker Chandra v. Inspector of Police, Crl.O.P.No.5481 of 2005
37. Mahesh Kumar v. State of Bihar, 1995 CrLJ 646 (All)
38. Maneka Gandhi v. Union of India, 1978 AIR 597, 1978 SCR (2) 621
39. Mills, [1963] Crim. LR 181
Page 4
40. National Human Rights Commission v. State of Gujarat & Ors., (2009) 6 SCC 767
41. New Chile Gold Mining Co. v. Blanco, [1884] 4 TLR 346
42. Nirmal Singh Kahlon v. State of Punjab, (2009) 1 SCC 441(456): AIR 2009 SC 984
43. Noor Aga v. State of Punjab, (2008) 16 SCC 417: (2008) 7 JT 409
44. O’Brien, (1974) 59 CAR 222
45. P.Sanjeeva Rao v. State of A.P., (2012) 7 SCC 56 (63) : AIR 2012 SC 2242
46. Param Hans Yadav v. State of Bihar, 1987 Cri. L.J. 789 (S.C.)
47. Parkash Singh Badal v. State of Punjab, 2007 1 SCC 1
48. Power, Privileges and Immunities of State Legislature, Re, AIR 1965 SC 745 [SC]
49. R. v. Feely , (1973) QB 530
50. R. v. Ghosh, [1982] 2 All ER 689.
51. R. v. Governor Pentonville Prison Ex parte Osman, [1990] 1 WLR 277
52. R. v. Guildhall Magistrates Court Ex parte Jarrett Thorpe, The Times, October 5,
1977, QBD
53. R. v. Morris, Anderton v. Burnside, [1983] 3 WLR 697
54. R. v. Pentonville Prison Governor ex parte Teja, [1971] 2 QB 274
55. R. v. Pitham & Hehl, (1977) Crim LR 285
56. R. v. Roberts, [1987] 84 Cr App R 117;
57. R. v. Small, [1987] Crim LR 777
58. Rajaram Gupta v. Dharamchand, 1983 Cri. L.J. (MP) 612
59. Ram Jethmalani & Ors. v. Union Of India & Ors., (2011) 8 SCC 1
60. Ramesh Kumari vs. State( N.C.T of Delhi), 2006 CrLJ 1622 (1624)
61. Rattiram v. State of MP through Inspector of Police, AIR 2012 SC 1485 (1495):
(2012) 2 SCALE 593
62. Re Winship, 397 U.S. 358, 364 (1970)
63. Salwant Singh Sandhu v. State of Delhi & Ors. 2001 CriLJ 3030
64. Sambhu Das v. State of Assam, (2010) 10 SCC 374: (2010) 3 SCC (Cri) 1301
65. Sanjay Chandra v. CBI, AIR 2012 SC 830 (838,839)
66. Sharangdhar Sharma v. State of Bihar & Ors.,1992 Cri LJ 2063
67. Sharifbai Mehmoob v. Abdul Razak, AIR 1961 Bom 42: 1961(1) CrLJ 220:62 Bom
LR 616
68. St. Xavier College v. State of Gujarat, (1974) 1 SCC 717 [S.C]
69. State of Haryana v. Bhajan Lal, 1992 Supp 1 SCC 335
70. State of Madhya Pradesh v. Shobharam, AIR 1966 SC 1910: 1966 Supp SCR 239
71. State of Maharashtra v. Mayer Hans George, 1965 AIR 722
72. State of Punjab v. Baldev Singh, AIR 1999 SC 2378: (1999) 6 SCC 172
73. State of Punjab v. Sarwan Singh, AIR 1981 SC 1054: (1981) 3 SCC 34
74. State of Tamil Nadu v. Nalini, 1999 Cri. L.J. 3124 (S.C.)
75. State v. Coetzee, [1997] 2 LRC 593
76. State(Delhi Admin.) v. Ram Singh, (1962) 1 Cri LJ 106)
77. The Broadmayne, [1916] P. 64
78. The Gagara, (1919) 184n28
79. The Parliament Belge, 5 P.D.197
80. Topandas v. State of Bombay, (1955) 2 S.C.R. 881 : A.I.R. 1956 S.C. 33.
81. Union of India & Ors. v. Sadha Singh, AIR 1999 SC 3833
82. Union of India v. Ganesh Das Bhojraj, 2000 AIR SCW 764
83. United States v. Alvarez-Machain, 112 S. Ct. 2188 (1992)
84. Vijay Kumar v. State of Punjab,(2013) 121 AIC 440 (P&H)
Page 5
85. Walker, [1962] Crim. LR 458
B. LAWS AND RULES

SR.NO NAME OF THE LAW AND RULES
1. Constitution of India, 1950
2. Crown office Act of 1877
3. Extradition Act, 1962
4. Foreign Sovereign Immunities Act of 1976
5. Hallbach Penal Code
6. Indian Evidence Act,1872
7. Indian Penal Code,1860
8. Special Court Act, 2010
9. State Immunity Act of 1978
10. Theft Act,1968
C.TREATIES, BOOKS, REPORTS AND DIGESTS

SR.NO NAME OF TREATIES, BOOKS, REPORTS AND DIGESTS
1. BLACK’S LAW DICTIONARY ( BRYAN GARNER EDN., 1990)
2. DAVID ORMEROD, SMITH AND HOGAN’S CRIMINAL LAW,(13TH EDN., OXFORD
UNIVERSITY PRESS,2011)
3. DICEY’S CONFLICT OF LAWS, (5TH EDITION)
4. H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA III (4TH EDN.,2013)
5. HALSBURY’S LAW OF ENGLAND (4TH EDN.,1973)
6. OPPENHEIM'S INTERNATIONAL LAW, (7TH EDITION, OXFORD UNIVERSITY PRESS)
7. IAN DENNIS, THE LAW OF EVIDENCE (5TH EDN. 2013)
D. INTERNATIONAL CONVENTIONS AND TREATIES

SR.NO NAME OF THE INTERNATIONAL CONVENTIONS AND TREATIES
1. International Covenant on Civil and Political Rights, 1976
2. Vienna Convention on Consular Relations, 1963
3. Vienna Convention on Diplomatic Relations, 1961
E. IMPORTANT ABBERIVATIONS AND DEFINTIONS

Art. Article
Cr.PC Criminal Procedure Code
FIR First Information Report
ICCPR International Covenant on Civil and Political Rights
IPC Indian Penal Code
SIT Special Investigation Team
Supreme Court Supreme Court of India
The Act, 2010 The Special Court Act, 2010
ToR Terms of Reference
UK United Kingdom
VCCR,1963 Vienna Convention on Consular Relations, 1963
VCDR,1961 Vienna Convention on Diplomatic Relations, 1961
In Re In the matter of
Page 6
STATEMENT OF JURISDICTION
The Appellant humbly approaches the Hon’ble Federal Court of Hallbach which has inherent
jurisdiction to try, entertain and dispose of the present case by virtue of Section 11 of the
Special Court Act, 2010. The Respondent humbly submits to the jurisdiction of the Hon’ble
court.
Page 7
STATEMENT OF FACTS
Background
1. Hallbach is a federal democratic republic in Eastern Europe. It is rich in natural resources

which contribute to most of its GDP. It shares is western territorial border with Hoko. Both
countries have a longstanding territorial dispute. Hoko claims the land on which Hallbach X
and Y city are situated. Hallbach annexed the territory of Hoko during “Weer war” in March
1773 which included cities X and Y.
2. During Weer war, the Hoko king was killed and his son was crowned the sovereign of the
territory. On the occasion of anointment in a public ceremony a famous emerald ‘covfefe’
was gifted to Hallbach crown. After Hallbach became a constitutional democracy in 1949,
covfefe was treated as a national asset and is present on the national flag and in the national
anthem. It is a symbol of national pride. It was displayed in the State Museum at “X”.
3. There is a dispute over the claim of covfefe. Several legal and constitutional experts believe
that Hoko has a legitimate claim. Dr. Ares who is the curator of State Museum, was a
decorated Hallbachian Special Forces officer and now a renowned scholar also believes that
although Hoko had legitimate historical claim over covfefe but now Hallbach legitimately
claimed covfefe and it was safer in Hallbachian hands.
4. Since 1975 till 1999 Hoko was ruled by military dictators. In 1999 elections were held
after constitutional changes and General Rouge was elected President of Hoko. After the
disbanding of the hated secret police, Hoko National Guard, new hope emerged for
development of democracy and economy in Hoko. After that Hoko economy boomed as
international trade developed. The Hokian culture developed and became wildly popular
among young generations. Hokian games, celebrities, movies, soaps became popular all over
the world. It attracted tourists and GDP of Hoko increased as international tourism
contributed to almost 20% in 2009.
5. Three giant media conglomerates were popular in entertainment industry in Hoko. And
among them Hoko National Pride Group was popular and had revenues from variety of
sources. Their greatest source was megastar Jupiter Hestia who had a large following among
Hokian population. She hosted a popular daily video podcast in which she spoke to people on
theme of instilling Hokian pride and nationalism.
Page 8
Events leading up to and following the attack on city X and Y

6. In December 2009, on the issue of hike in price of bread a local movement began in small
Hokian town. Hestia covered the issue by her podcast in which she supported people’s
demand. But after that it became a national agitation and led to widespread violence. Hestia
started to make requests to people to cooperate with government authorities. General Rouge
also wanted distraction from domestic politics. Hestia made requests through her podcast for
creating distraction. She also changed her social handle to @getmecovfefe. And made
requests through the tweet which read as “Been there too long #getmecovfefe” which got
viral.
7. Also a message of General Rouge to his son leaked as it was accidently tweeted. On 25th
March a binding resolution was passed by Senate of Hoko for empowering the military to
protect the culture and people of Hoko. Also an official order of Defence Minister to Chief of
Staff of Hoko Army leaked to press which also got viral which contained order for restoring
historic lands of Hoko.
8. After that Border skirmishes started between Hoko and Hallbach which led to breaking of
ceasefire accord and high intensity campaign began at the border in spite of UN intervention
to broker peace. On 25th April 2010, X and Y ceased to be in control of Hallbach. Both
countries blamed each other. Hoko claimed that it was under control of local militia of
Hallbach and Hallbach claimed it was under Hoko’s control and it was Hoko’s militia.
9. The militia who controlled city X and Y sported red bandanas or hat with slogan “MAKE
US# COVFEFE AGAIN” .They did reprehensible acts and atrocities in city of X and Y. And
attacked State Museum at X where covfefe was displayed. Dr. Ares was held as hostage for
several days. Later Dr. Ares escaped from there with priceless exhibits in a truck which not
included covfefe. It was described as an impossible feat.
10. On developing of international pressure on Hoko, the violence reduced in X and Y. Later
Hoko promised to cooperate with Hallbach to reduce border tension although it denied to
have any role in attacks in X and Y. Ceasefire accord was honoured by both countries and
gradually the mysterious militia retreated. On counterattack Hallbach captured some militia
members which were identified as Hoko Special forces. And Hallbach decided to try them
under common law system.
11. On 19th May, 2010 Jupiter Hestia in an interview to local newspaper stated that she was
given covfefe by a mysterious donor and had handed it over to the authorities for verification.
After verification it will be returned to the proper historical home. On 20th May 2010 for her
Page 9
cultural contribution she was announced as ambassador to UK and would present her
credential on 28th May 2010. On 29th May 2010 she was reported missing. Hoko lodged
official protests in UK and Hallbach. Hoko claimed that Hallbachian army abducted her. But
Hallbach refused by saying that it had no involvement in disappearance of ‘noted war
criminal, Hestia’
The Proceedings
12. On 4th June Hallbach Central Police was given Jupiter Hestia by a mysterious donor and it
was said that after verifying credentials she will be returned to her historical home. On 5th
June she was arrested and produced before Magistrate in first province and remanded to 15
days police custody.
13. On 1st August 2010, Federal Court of Hallbach gave order in Re: X and Y for setting up
SIT and Special Court for doing the investigation and trial respectively of all matters relating
to events in X and Y between 25th April 2010 and 10th May 2010. It also gave orders to
Special Court to give judgment within 24 Months. On 31st July 2012, the Judgment of Special
court came in which seventeen militia member were punished for death sentence, Jupiter
Hestia was punished for life-imprisonment but was acquitted from the charges of conspiracy
to theft and Dr. Ares was acquitted for theft. Now the matter has been placed before the
Federal Court of Hallbach in appeal by Hallbach government, the convicted militia and
separately by Jupiter Hestia challenging her conviction which has been clubbed together and
which needs to be decided by the court.
STATEMENT OF ISSUES
The Appellants impugns three issues for consideration,

1. The entire investigation and trial pursuant to orders passed by the Hallbach Federal Court
in Re X and Y was contrary to the process of law and thus the convictions should be set
aside.
2. The arrest and prosecution of diplomat Jupiter Hestia was contrary to law and hence the
conviction should be set aside.
allegation of theft was in accordance with the law and fact; hence it should not be reversed.
Page 10
WRITTEN PLEADINGS
1. THE ENTIRE INVESTIGATION AND TRIAL PURSUANT TO ORDERS PASSED BY THE
HALLBACH FEDERAL COURT IN RE X AND Y WAS CONTRARY TO THE PROCESS OF LAW AND
THUS THE CONVICTIONS MUST BE SET ASIDE.
The investigation conducted by the SIT and the trial conducted by the Special Court under
the Act, 2010 pursuant to orders of Hallbach Federal Court was contrary to process of law. It
had been conducted in violation of Constitution of India, Criminal Procedure Code, 1973,
Indian Evidence Act, 1872, VCCR, 1963 and Common Law Principles. Hence the entire
investigation and trial leading to the conviction of Militia and Jupiter Hestia be set aside.
1.1. The order passed by the Hallbach Federal Court on 1st August 2010 In Re X and Y
was unconstitutional.
The Hallbach Federal Court passed an order on 1st August 2010 relating to all the matters
pertaining to the events in X and Y ‘and all related conspiracies’ between 25th April 2010 and
10th May 2010. It was passed under its advisory jurisdiction which is in pari materia with
Art.143 of the Constitution of India.1 The said order directed to setup an SIT for investigating
the matter and a Special Court for the trial of the hereinbefore mentioned matter. The order
passed under the advisory jurisdiction of the Federal Court was unconstitutional. Because
Art. 143 is not a part of the administration of justice. It is part of advisory machinery
designed to assist the President (Executive) in discharge of his duties.2 Art. 143 does not deal
with jurisdiction of the Supreme Court but with the power of the President.3When the
President consults the Supreme Court he is seeking its advice and not an adjudication of a
dispute between parties.4 It does not refer to any adjudication at all, but with consultation.
There is to be no judgment, decree or order5; there is to be an Opinion to be forwarded to
the President in a report to him.6 Further such an opinion is not technically binding on the
courts, and the court giving the opinion could itself, in a contested litigation, be asked to
reconsider it. This follows from the fact that that advisory opinion involves no lis, binds
nobody because it affects nobody’s rights, and therefore lacks all the essential characteristics
of a judicial function. Therefore, although any opinion expressed by judges of the Supreme
1
¶ 24, Page 6, STATEMENT OF FACTS, The K.K. Luthra Memorial Moot Court, 2018.
2
H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA III 2688 (4th Edn.,2013)
3
SEERVAI, supra note 2 at 2690
4
SEERVAI, supra note 2
5
In Re Implementation of the Indo-Pakistan Agreement, AIR 1960 SC 845: 1960 (3) SCR 280; In Re Duty on
Non- Agricultural Property,(1960) 49 CWN 9 (FR)
6
Page 11
Court in an advisory opinion would have high persuasive authority, it is not the law declared
by the Supreme Court within the meaning of Art. 141.7 A decision is not considered to be
binding because of its conclusion but because of its ratio and the principles laid down
therein.8 This is known as the doctrine of Stare decisis. The term stare decisis means, to
stand by that which is decided.9 This would have to be the law decided among parties. In a
reference case there are no parties – thus law in that case is not decided, but is merely an
opinion from the judicial wing of the nation to the executive head of the country on certain
matters which both consider important to the well being of the nation. In Attorney General
for Onatario v. Attorney General for Canada10, Lord Loreburn observed “But the answers
are only advisory and will have no more effect than the opinions of the law officers.” The
Federal Court In re Levy of Estate Duty11 cited these observations of Lord Loreburn with
approval. In re Kerala Education Bill, 195712 Das C.J. quoted with approval the above
observations of the Federal Court. Therefore, the legislative history and judicial decisions
show that the power conferred on the President to seek advisory opinions merely enabled him
to obtain advice which had no higher status than that of the opinions of law officers. So there
could be report made to the President by the Supreme Court under Art. 143 of the
Constitution of India and the report is not binding on the President and therefore cannot be
binding on anybody else.13 Hence it is submitted that there could be no order passed by the
Hallbach Federal Court In Re X and Y under its advisory jurisdiction. So the order passed by
the Hallbach Federal Court is unconstitutional and not binding and therefore the Investigation
and trial pursuant to the orders are contrary to the process of law and hence the conviction
must be set aside.
1.2. The entire investigation conducted by the Special Investigation Team was contrary
to process of law.
SIT is appointed in complex and high profile cases in which the ordinary investigation
agency cannot investigate the case in an effective manner. So the Supreme Court or other
Courts in such cases gives directions to the concerned government to establish SIT to conduct
7
SEERVAI, supra note 2 at 2684, St. Xavier College v. State of Gujarat, (1974) 1 SCC 717 [S.C], Power,
Privileges and Immunities of State Legislature, Re, AIR 1965 SC 745 [SC] at § 762-63
8
B. Sharma Rao v. Union Territory of Pondicherry, AIR 1967 SC 1480[SC], M.K. Sabha v. A.Faizullbhai, AIR
1976 SC 1455[SC], Bachan Singh v. State of Punjab, (1979) 3 SCC 727 [SC]
9
BLACK’S LAW DICTIONARY 1414 ( Bryan Garner Ed, 1990)
10
(1912) AC 571
11
(1944) FCR 317 at p. 320.
12
(1959) SCR 995 at p.1016.
13
Page 12
the investigation. And after that the concerned government formulates the ToR for the SIT on
the basis of the directions of the Supreme Court. Then the government publishes or notifies
the ToR for the SIT in the Official Gazette. The ToR provides the scope and limitations of the
power of SIT. And on that basis the SIT conducts the investigation in the particular case. The
notification regarding the ToR for the SIT by the government is a necessary procedure for
conducting the investigation. If the ToR for SIT is not notified in the official Gazette after the
directions given by the concerned court for the investigation in the particular case, then the
entire investigation conducted would be contrary to the process of law and invalid. As it
evidently makes the whole process of investigation questionable, that the investigation by the
SIT would have been conducted in an arbitrary and anti-democratic manner. In Ram
Jethmalani & Ors v. Union Of India & Ors14, the Black Money Case, the Supreme Court
gave directions to the Government to Setup SIT for investigating the matter. And further gave
directions to the Union of India to issue appropriate notification and publish the same 15.So on
29th May, 2014 in pursuant to the order of the Hon’ble Supreme Court of India in the
particular case the SIT was constituted by notifying the ToR for SIT in the Gazette of India.
Terms of Reference included the constitution of the SIT and directions of Investigation in the
particular case. Similarly, in National Human Rights Commission v. State of Gujarat &
Ors.16, the Gujarat riot case, the Supreme Court considering the sensitive nature of the case
ordered for the appointment of a SIT and directed the State Government that appropriate
notification shall be issued regarding the creation of SIT as early as possible. Accordingly
pursuant to or in furtherance of the said direction the State of Gujarat issued a notification on
1st April, 2008 constituting a Special Investigation Team to investigate into cases arising out
of Godhra incident and communal riots erupted thereafter in the year 2002. Hence it is
evident that for the constitution of SIT notification of ToR is a necessary process of law. And
the SIT setup in ignorance of such procedures would be invalid. In the present case, the
Federal Court directed that the investigation in the matter related to militia and covfefe
should be conducted by the SIT.17 The SIT was Setup and carried on the investigation, on the
basis of which the Militia and Jupiter Hestia were prosecuted. But the setting up of SIT was
not according to the process of law. The notification of ToR for SIT was not published in the
Official Gazette of Hallbach. That makes the entire investigation by the SIT contrary to the
14
(2011) 8 SCC 1
15
Id. at 50
16
(2009) 6 SCC 767
17
Page 13
process of law and arbitrary. As the investigation was conducted disregarding the procedures
of laws and natural justice. The scope and limitations of the power of SIT were not defined.
Hence it is submitted before the Court that the entire investigation should be declared invalid
and the conviction based on it be set aside.
1.3. FIR had not been registered under Sec 154 of Cr.PC after the Militia and Jupiter
Hestia were arrested which makes the investigation by SIT questionable and malafide.
In Lalita Kumari v. Govt. of UP18, the Constitutional Bench of the Supreme Court held that
registration of First Information Report is mandatory under Section 154 of the Cr.PC, if the
information discloses commission of a cognizable offence and no preliminary inquiry is
permissible in such a situation. The object of the FIR is to set the Criminal law in motion. It
enables the police officer-in-charge of the police station to initiate the investigation on the
crime and to collect evidence as soon as possible. This report forms the foundation of the
case. But in this case after arrest no FIR was registered on behalf of the State of Hallbach.
This shows the gross violation of the process of law on the part of the state. It is necessary to
know whether the police had power to investigate the case or not. The FIR is the key to the
start of investigating the case which contains the charges on which the investigation has to be
conducted. Since in the present case, FIR had not been registered, it shows that the SIT
conducted the investigation in an arbitrary manner and the malafide nature of the
investigation. As what charges were laid on militia is unknown and also they were
subsequently convicted for cognizable offences. It is the mandatory duty of the concerned
officer who is duty bound to register the case if it is disclosing cognizable offence 19, and then
only after recording of FIR, Officer-in-Charge of the police station may either himself or his
authorised subordinate start the investigation.20 The Punjab and Haryana rules prescribe that
the police “is bound to formally register a case and then investigate into the crime” 21.F.I.R is
also registered so that magistrate can keep an oversight over the investigation by the police.
But here the transparency has not been maintained which makes the entire investigation by
the SIT malafide and questionable.
1.4. The Militia who were arrested were not produced before the Magistrate within 24
hours of arrest which violates Section 57 Cr.PC, and Art.22 (2) of the Constitution of
India.
18
(2014) 2 SCC 1; State of Haryana v. Bhajan Lal, 1992 Supp 1 SCC 335; Parkash Singh Badal v. State of
Punjab, 2007 1 SCC 1
19
Charu Kishore Mehta vs State of Maharastra, 2011 CrLJ 1486 (1492)
20
Bijay Singh vs State, AIR 2002 SC 1949
21
Ramesh Kumari vs. State( N.C.T of Delhi), 2006 CrLJ 1622 (1624)
Page 14
It is the constitutional requirement under Art.22 (2) and procedural requirement under
Section 57 of the Cr.PC that the arrested person must be produced before the nearest
magistrate within 24 hours of arrest. The object is to prevent arrest and detention with a view
to extract confession or as a means of compelling people to give information and also to
allow the magistrate to determine whether the detention is lawful or not. And police officer
failing to produce an arrested person before magistrate within 24 hours is guilty of wrongful
detention.22. Also in Mahesh Kumar v. State of Bihar23 it was said that detention of arrestee
in police lock-up beyond 24 Hours violates the mandatory provision of Section 57 Cr.PC and
Article 22 of the Constitution of India. In this particular case there is no mention of militia
being produced before the magistrate before 24 hours of arrest. That leads to the conclusion
that the militia were illegally detained without being produced before the magistrate which is
the gross violation of natural justice and due process of law. In case of Khatri(II) v. State of
Bihar24, the Supreme Court has strongly urged upon the state and its police authorities to
ensure that this constitutional and legal requirement to produce an arrested person before a
Judicial Magistrate within 24 hours of the arrest be scrupulously observed. This healthy
provision enables the magistrate to keep check over the police investigation and it is
necessary that the magistrates should try to enforce this requirement and where it is found
disobeyed, come heavily upon the police. So the fundamental rights of the arrested persons
were denied to the militia as they were wrongfully detained. So the entire investigation was
flawed.
1.5. After the investigation conducted by the SIT there is no mention of submission of
final report under Section 173(2) and 173(5) and giving of copies to the accused under
173(7).
Under Section 173(2) Final Report or chargesheet has to be submitted by the investigating
agency after the investigation is completed. When no case is made after investigation it is
known as Final report which is comes under Sec 169 Cr.PC and when it appears to the
investigating agency that sufficient case is there then it files charge sheet comes under
Section 170 of the Cr.PC. So when a chargesheet is filed other documents have also to be
submitted under Section 173(5) and at the same time copies of it have to be given to the
accused for preparing his defence under Section 173(7)25. All this procedures have not been
22
Sharifbai Mehmoob v. Abdul Razak, AIR 1961 Bom 42: 1961(1) CrLJ 220:62 Bom LR 616
23
1995 CrLJ 646 (All); Gunpati v. Nafisul Hasan, AIR 1954 SC 636
24
1981 SCC (1) 627
25
P.Sanjeeva Rao v. State of A.P., (2012) 7 SCC 56 (63) : AIR 2012 SC 2242
Page 15
realised throughout the investigation process by the SIT which further makes the
investigation flawed and denies due process of law and natural justice to the accused. As
submission of the report is a part of the investigation.26 Also it was held in Dinesh Dalmia v.
CBI27 that so long as a police report is not filed under Section 173(2) investigation remains
pending. So it is showing the arbitrariness under which the investigation was conducted.
1.6. The trial conducted by the Special Court under the Act, 2010 was invalid.
Every Bill becomes a Law after following a set of procedures. Some specific bills like Money
Bills have special procedures but the rest have to follow the common procedures of Ordinary
Bill. Those procedures have been prescribed in the Constitution of India. Generally after the
draft bill is passed by both the Houses of Parliament it goes to the President of India for
assent. After getting the assent of the President the bill becomes an Act. But the last step in
the law making procedure is the publication of the Act in Official Gazette. This is also termed
as notification. This is step is necessary as it is the only official method of informing the
public at large about a new law. As the Supreme Court has also held that “ There would be
no question of individual service of a general notification on every member of the public and
all that the subordinate law making body can or need do, would be to publish it in such a
manner that persons can, if they are interested, acquaint themselves with its contents.28” So,
no citizen can thereafter plead ignorance of the said law. Hence, it can be said that
notification in the Official Gazette is the conclusive step in enacting a law by the
Government. The object of publication in the Gazette is not merely to give information
to public. Official Gazette, as the very name indicates, is an official document. It is published
under the authority of the government. Publication of an order or rule in the Gazette is the
official confirmation of making of such an order or rule. The version as printed in
the Gazette is final29. Also the Gazette is admissible as official record evidencing public
affairs and any Court of Law is required to presume its contents as genuine under Section 35
and Section 38 read with Section 81 of the Indian Evidence Act, unless contrary is proved30.
So Gazette notification is an important legal requirement to validate, authenticate and to
make effective various kinds of Laws, Acts, Rules, Orders and Government decisions. Also
Natural justice requires that before a law can become operative it must be promulgated or
26
Chittaranjan Mirdha vs. Dulal Ghosh, 2009 CrLJ 3430 (3432) (SC), Sambhu Das v. State of Assam, (2010) 10
SCC 374: (2010) 3 SCC (Cri) 1301
27
(2007) 8 SCC 770
28
State Of Maharashtra v. Mayer Hans George, 1965 AIR 722
29
ITC Bhadrachalam Paperboards & Anr. v. Mandal Revenue Officer, Andhra Pradesh and Ors., JT 1996 (8) 67
30
Union of India v. Ganesh Das Bhojraj, 2000 AIR SCW 764
Page 16
published. The Supreme Court held that “In the absence of any special law or custom, we are
of opinion that it would be against the principles of natural justice to permit the subjects of a
State to be punished or penalised by laws of which they had no knowledge and of which they
could not even with the exercise of reasonable diligence have acquired any knowledge.
Natural justice requires that before a law can become operative it must be promulgated or
published. It must be broadcast in some recognisable way so that all men may know what it
is; or, at the very least, there must be some special rule or regulation or customary channel by
or through which such knowledge can be acquired with the exercise of due and reasonable
diligence.31” Hence, Promulgation or publication of some reasonable sort is essential for
validating the law. Also, In England the rule is that Acts of Parliament become law from the
first moment of the day on which they receive the Royal assent, but Royal Proclamations
only when actually published in the official Gazette. And even the publication in the London
Gazette will not make the proclamation valid in Scotland nor will publication in the
Edinburgh Gazette make it valid for England. It is clear therefore that the mere enacting or
signing of a Royal Proclamation is not enough. There must be publication before it can
become law, and in England the nature of the publication has to be prescribed by an Act of
Parliament. The Act of Parliament regulating this matter is the Crown Office Act of 1877.
So, “The requirement of publication in the Gazette is mandatory and not directory.32”
Otherwise the law would be invalid. In the present case, the Militia and Jupiter Hestia were
tried by the Special Court. The Special Court was setup through the Act, 2010 pursuant to the
direction of Federal Court in Re X and Y.33 But the Hallbach Government didn’t notify the
Act, 2010 in the Gazette of Hallbach. The mere non-publication of the Act in the Gazette of
Hallbach makes the entire trial conducted by the Special Court invalid. It was against the
principles of natural justice as well as contrary to the procedures of law. Because notification
in the Official Gazette is mandatory for validating the law and making it effective against the
public at large or certain group of people in a particular territorial jurisdiction. Hence it is
submitted that in the light relevant judgments and laws conviction done in the matter of
Militia and Jupiter Hestia by the Special Court must be set aside.
1.7. The trial conducted by the Special Court was unfair and against the due process of
law and principle of natural justice, hence the conviction be set aside.
A “fair trial” is the heart of criminal jurisprudence and, in a way, an important facet of a
31
Harla v. State of Rajasthan, 1951 AIR 467
32
supra note 2
33
Page 17
democratic polity that is governed by Rule of law34. Fair investigation and trial are
concomitant to preservation of fundamental rights of accused under Art.21 of the
Constitution of India35. And a conviction resulting from an unfair trial is contrary to our
concept of justice36. In the present case, the principle of natural justice has been not adhered
to as the Militia and Jupiter Hestia were denied the “Audi Alterm Partem” which means that
“no one should be unheard”37. As grant of fairest opportunity to the accused to prove his
innocence is the object of every trial. They were not provided legal and independent counsel
under Art.14(3)(d) of ICCPR38. Also, the basic principle of criminal justice system given
under Article 14(2) of ICCPR, that is, “right to be presumed innocent until proved guilty
according to law” was denied. Hallbach even before the trial had declared Jupiter Hestia as a
“noted war criminal” which establishes the fact that the trial had been conducted in a biased
and unfair manner39. The presumption of innocence is essential for upholding the right to fair
trial”. The significance of the presumption is not and should not be affected by the
seriousness of the offence in question40. The accused must be treated in accordance with the
presumption that she or he is innocent until the charge has been proved beyond reasonable
doubt41. Also, there has been violation of Section 468 of Cr.PC which lays down the period
of limitation within which any prosecution must start. As till when the investigation was done
and when the prosecution started is not evident. The Supreme Court has emphasized that any
prosecution must abide by the limitation. The object is to sub serve the concept of fairness of
trial as enshrined under Art.21 of Constitution of India42. Also Hestia and Militia were not
released on bail as the Supreme Court has held in Ashraf Khan v. State of Gujarat43 that even
in cases like under Terrorist and Disruptive Activities (Prevention) Act, 1987 where there is
no prospect of a trial being concluded within a reasonable time, it is necessary to release on
34
Rattiram v. State of MP through Inspector of Police, AIR 2012 SC 1485 (1495): (2012) 2 SCALE 593.
35
Nirmal Singh Kahlon v. State of Punjab, (2009) 1 SCC 441(456): AIR 2009 SC 984; Amarinder Singh v.
Prakash Singh Badal, (2009) 6 SCC 260: (2009) 7 SCALE 382, G. Someshwar Rao v. Samineni N. Rao, (2009)
14 SCC 677: (2009) 10 SCC 268; Jayendra Vishnu Thakur v. State of Maharastra, (2009) 7 SCC 104: (2009) 7
SCALE 757; Noor Aga v. State of Punjab, (2008) 16 SCC 417: (2008) 7 JT 409; Vijay Kumar v. State of
Punjab,(2013) 121 AIC 440 (P&H).
36
State of Punjab v. Baldev Singh, AIR 1999 SC 2378: (1999) 6 SCC 172; Kehar Singh and Anr v. Union of
India and Anr, ’88 A.S.C 1883, (1988) 2 Supp. S.C.R. 24
37
Maneka Gandhi v. Union of India, 1978 AIR 597, 1978 SCR (2) 621
38
State of Madhya Pradesh v. Shobharam, AIR 1966 SC 1910: 1966 Supp SCR 239
39
40
IAN DENNIS, THE LAW OF EVIDENCE 446 (5TH EDN. 2013); State v. Coetzee[1997] 2 LRC 593;Lambert[2001]
UK HL 37
41
Re Winship, 397 U.S. 358, 364 (1970); Coffin v. United States, 156 U.S. 432, 453 (1895)
42
State of Punjab v. Sarwan Singh, AIR 1981 SC 1054: (1981) 3 SCC 34
43
AIR 2013 SC 217(230): 2013 CrLJ 226
Page 18
bail as this can be taken to be embedded in the right to speedy trial under Art. 2144. The right
under Art.36 of VCCR, 1963 was denied to the Militia and Jupiter Hestia as they were neither
notified of the right to consult consulate nor provided regular consultation with the consulate
during the detention and trial45. Hence it is submitted before the Federal Court of Hallbach
that in light of the relevant judgments and laws the entire investigation and trial pursuant to
the orders of the Federal Court should be declared contrary to process of law and the
convictions must be set aside.
2. THE ARREST AND PROSECUTION OF DIPLOMAT JUPITER HESTIA WAS CONTRARY TO LAW
AND HENCE THE CONVICTION BE SET ASIDE.
The arrest and prosecution of Jupiter Hestia who was diplomat of Hoko was in violation of
Extradition Act, 1962 and diplomatic protest by Hoko, Article 40 of the VCDR, 1961 and
sovereign or foreign immunity. Hence the conviction of diplomat Jupiter Hestia must be set
aside.
2.1. The arrest and prosecution of Jupiter Hestia was in violation of the Extradition Act,
1962, and the diplomatic protest by Hoko.
Jurist Oppenheim defines extradition as: “Extradition is a delivery of an accused or a
convicted individual to the State on whose territory he is alleged to have committed or to
have convicted of a crime, by the State on whose territory the alleged criminal happens to be
for the time46.” In the present case, Jupiter Hestia was arrested by the Central Police Hallbach
without warrant under Section 41(1)(g) of Cr.PC. The arrest was in violation of the Section 4,
5, 6, 9, 34(b) of the Extradition Act, 1962. It is a common law principle that when special
law is introduced, the general law on the matters covered stands obliterated. The general
powers of arrest as contained in Cr.PC stand superseded as the provisions of the Extradition
Act, 1962, which is a special law, and has an overriding effect. The arrest of Jupiter Hestia
under Section 41(1)(g) is illegal and contrary to law47. Since for the arrest of Jupiter Hestia
there was no requisition from Hoko under Section 4 and no order passed by the Central
Government under Section 5. Then only Jupiter Hestia could have been arrested after
obtaining warrants of arrest from the magistrate under Section 6 and 9 of the Act. Also
provisional warrant of arrest under Section 34(b) of the Act could also have been obtained if
44
Babu Singh v. State of U.P., AIR 1978 SC 527, at 529;Kashmira Singh v. State of Punjab, AIR 1977 SC
2147; Sanjay Chandra v. CBI, AIR 2012 SC 830 (838,839)
45
Jadhav Case (India v. Pakistan)
46
OPPENHEIM'S INTERNATIONAL LAW, Seventh Edn., p. 631
47
Salwant Singh Sandhu v. State of Delhi & Ors. 2001 CriLJ 3030;State(Delhi Admin.) v. Ram Singh, (1962) 1
Cri LJ 106); Sharangdhar Sharma v. State of Bihar & Ors.,1992 Cri LJ 2063; Union of India & Ors. v. Sadha
Singh, AIR 1999 SC 3833
Page 19
immediate arrest was to be made. It is submitted that neither of the procedures specified in
the Extradition Act, 1962 had been followed. It is further submitted that is very unfortunate
that the learned magistrate after the production of Hestia on 5th June, 2010 without even
understanding the nature of proceedings, mechanically and arbitrarily ordered the remand of
Hestia for 15 days police custody48. Hence it is submitted that the entire procedure adopted
by the Central Police of Hallbach by arresting and producing Hestia before the learned
Magistrate and thereafter the learned magistrate remanding the petitioner for judicial custody
is totally invalid and illegal and against the established procedure of law.
The prosecution was also in violation of the diplomatic protest launched by the Hoko.49 As
due to the effect of the diplomatic protest, Jupiter Hestia should have been returned to the
Hoko by the Central Hallbach Police after verifying her credentials. As was held in Antoine
Argound case50 if the diplomatic protest note had been launched by the Federal Republic of
Germany the French Courts could have no jurisdiction to try him and hence the conviction
would have been set aside. But as no protest note was launched the conviction was upheld. So
in spite of the protest launched by the Hoko, she was arrested and tried by Hallbach which is
a clear violation of the diplomatic protest. Hence the prosecution of Jupiter Hestia is contrary
to law.
2.2. The arrest and prosecution of Jupiter Hestia was against the sovereign or state
immunity.
The concept of “sovereign immunity” or “State immunity” is imbibed in the Customary
international law, according to which a foreign sovereign or State is not amenable to the
jurisdiction of the forum of the state unless voluntarily submitting to the jurisdiction of the
local courts and the law enforcement agencies. The concept finds its expression in the
exemption of the person of the sovereign from the arrest or detention within a foreign
territory and extends to the foreign troops and the diplomatic agents or other
representatives of the foreign sovereign51. In Compania Naviera Vascongado v. S.S
Christina (Christina case)52, Lord Wright observed, “ there are general principles of
international law according to which a sovereign state is held to be immune from the
jurisdiction of another sovereign State..... the rule may be said to be based on the principle of
48
M.R.Mohan Karnaker Chandra v. Inspector of Police, Crl.O.P.No.5481 of 2005
49
50
ILR, Vol.45, p.90; United States v. Alvarez-Machain, 112 S. Ct.2188 (1992)
51
Duff Development Co. v. Kelantan Government,[1924] A.C. 797,805; The Parliament Belge,5 P.D.197; The
Gagara (1919) 184n28; The Broadmayne, [1916] P. 64
52
[1938] AC 485
Page 20
par in parem non habet imperium (i.e., an equal has no authority over an equal)...”. Also
under the United States law, Foreign Sovereign Immunities Act of 1976, foreign sovereign
have been given rights and immunities, in which foreign states are immune both from
jurisdiction and from enforcement in the United States, unless an exception lies. The Act
defines “foreign state” broadly, and extends immunity not just to the sovereign nation state,
but also to its political subdivisions, agencies and instrumentalities. Also under the UK law,
State Immunity Act of 1978, it is provided that foreign states, including their heads of state,
government, and governmental departments, are immune from suit in the UK courts. Hence,
no action or other proceeding can be taken in the courts of a country against a foreign
sovereign53.Sovereign immunity is to be provided to sovereign state including its
machineries, instrumentalities and diplomatic representatives and other representatives in
another state under the customary international law and under the common law. In the present
case, Jupiter Hestia was a diplomat of Hoko. Hoko had announced on 20th May 2010 that she
would be the next ambassador to UK in regard of her cultural contributions to Hoko and will
present her credentials on 28th May 2010 in London. Since she was in London on 29th May
2010, which can be inferred from her last tweet, when she got missing from the London
Museum it can be deductively inferred that diplomatic accreditation was done on 28th May
2010 in which she presented her credentials to the Head of the State of UK and was certified
as official representative of Hoko.54 As she was a diplomatic representative she formed a part
of the foreign state and was entitled to the sovereign or State immunity. Hence the arrest and
prosecution of the diplomat Jupiter Hestia done by the State of Hallbach was against
sovereign immunity or State immunity.
2.3. The arrest and prosecution of diplomat Jupiter Hestia was in violation of the
Article 40 of the Vienna Convention on Diplomatic Relations, 1961.
According to Article 40(1) of the VCDR, 1961, a diplomat is entitled to the same
inviolability and immunities in the third state as in the receiving state when he passes through
or is in the territory of the third state, while proceeding to take up or return to his post, or
when returning to his own country. This Article was interpreted in R. v. Guildhall
Magistrates Court Ex parte Jarrett Thorpe55, and the Court rejected the argument that Art. 40
only applied to diplomatic agents and their families when they were in transit between the
53
DICEY’S CONFLICT OF LAWS, 5TH ED., P.194
54
¶ 22, Page 5, 6, STATEMENT OF FACTS, The K.K. Luthra Memorial Moot Court, 2018.
55
The Times, October 5, 1977, QBD, R. v. Pentonville Prison Governor ex parte Teja, [1971] 2 QB 274; New
Chile Gold Mining Co. v. Blanco, [1884] 4 TLR 346
Page 21
sending state and the receiving state. So this court extended the scope Art. 40 in which the
diplomats and their family members were entitled to the immunities and privileges in the
third state even when they are not in transit between the sending state and the receiving state.
In the present case, on 4th June 2010 Jupiter Hestia was found in Hallbach, a third state, after
she was missing from UK on 29th May 2010 after the diplomatic accreditation on 28th May
2010. A mysterious donor had given her to the Central Police of Hallbach.56 But instead of
providing the immunities and privileges she was denied the diplomatic immunity. And was
arrested and prosecuted by the Special Court of Hallbach. It was contrary to law as whether
she is in transit or not in the third state, she should have been provided the due immunities
and privileges under Art. 40 as held in the above case. Hence the arrest and prosecution of
Jupiter Hestia was in violation of the Art.40 of the VCDR, 1961. So in the light of the
arguments advanced and relevant cases, laws and principles, the arrest and prosecution of
Jupiter Hestia was contrary to law and hence the conviction be set aside.
3. THE DECISION OF THE SPECIAL COURT FOR ACQUITTAL OF DR. ARES AND JUPITER
HESTIA FOR THE ALLEGATION OF THEFT WAS IN ACCORDANCE WITH THE LAW AND FACT;
HENCE IT SHOULD NOT BE REVERSED.
The decision of the Special Court for acquittal of Dr. Ares and Jupiter Hestia for the
allegation of the theft and conspiracy to theft of covfefe was made in accordance with the
Hallbach Penal Code, Theft Act 1968, Indian Penal Code,1860 and Indian Evidence Act 1872
and the circumstances and facts of the case. Hence the decision of Special Court is
accordance with the law and should not be reversed.
3.1. The decision of Special Court for acquittal of Dr. Ares was in accordance with the
law and fact.
It is a fundamental principle of criminal law that a person may not be convicted of a crime
unless the prosecution proves beyond reasonable doubt both (a) that responsibility is
attributed to the accused for a certain behaviour or the existence of a certain state of affairs, in
circumstances forbidden by criminal law and that the accused has caused the prescribed event
and (b) that the accused had a defined in relation to the behaviour, existence of a state of
affairs or causing of the event.57 In other words if the two elements of crime, actus reus and
mens rea are proved beyond reasonable doubt, the conviction is resolute.
56
57
DAVID ORMEROD, SMITH AND HOGAN’S CRIMINAL LAW,(13th Edition, Oxford University Press,2011)
Page 22
3.1.1. There was no requisite Mens Rea: Criminal act generally requires some element of
wrongful intent or other fault. This is known as mens rea or guilty mind. In the present case,
Dr. Ares had been tried by the Special Court for the allegation of theft and had been
acquitted. The acquittal was in accordance with the law and fact as there was no mens rea for
theft according to Section 400 of the Theft Act 1968 under which mens rea includes element
of dishonesty. For the determination of dishonesty which is a question of fact58 in England in
matters of theft there is a test laid down in R. v. Ghosh59 and is known as Ghosh Test. It was
previously a two-fold test which required two things to be proved for establishing the element
of dishonesy60: (i) objective element and (ii) subjective element. According to the first test,
the first thing to be determined is that whether according to the ordinary standards of
reasonable and honest people what was done was in fact dishonest. If the first test is not
satisfied then there is no need to go for second test. And there will be acquittal for the
allegation of theft. But if the first test is satisfied then the second test is to be applied.
According to which it has to be determined whether the defendant realised what he was doing
was by those standards dishonest. After the second test is satisfied then the dishonesty in the
matter of theft is proved. But after the61, the Ivey v. Genting Casinos (UK) Ltd. t/a Crockfords
subjective test has been removed. Now only the first test, i.e., Objective test has to be
satisfied to establish the element of dishonesty. In the present case, Dr. Ares is the curator of
the State Museum X and was a decorated Hallbachian Special forces officer and is now a
renowned scholar. The covfefe had been kept in the State Museum X. After the attack on the
State Museum, which was the first building to be attacked, Dr. Ares had been kept as Hostage
for several days. But even then what was described as an impossible feat he managed to
escape from the clutches of the Militia. He escaped with a truck filled with exhibits from the
museum which were priceless.62 On applying the test of objectivity we get that the act of
taking a truck full of priceless exhibits while escaping was an impossible feat and an act of
bravery and valour according to the ordinary standards of reasonable and honest people. And
was not an act of dishonesty. This totally disproves that there was wrongful intent or other
fault.
3.1.2. There was no Actus Reus on the part of the Accused: The physical element of a crime
or behaviour connected to the crime is called the actus reus. A person must participate in all
58
R. v. Feely , (1973) QB 530
59
[1982] 2 All ER 689.
60
R. v. Roberts, [1987] 84 Cr App R 117; R. v. Small, [1987] Crim LR 777
61
[2017] UKSC 67
62
Page 23
the acts necessary to constitute a particular crime in order to be guilty thereof. In the present
case, Dr. Ares is accused for the allegation of theft of covfefe. Covfefe is the largest emerald
in the world and the national asset of State of Hallbach. The actus reus of theft under the
Theft Act 1968 mainly includes appropriation. Appropriation is stated under Section 3 of the
Theft act 1968, as being: 'Any assumption by a person of the rights of an owner amounts to
an appropriation...”. Therefore appropriation means doing something with the property that
the owner has a right to do, but which no one else has the right to do without the owner’s
permission63. This is not limited to physically taking the property; it could include selling,
keeping, damaging, destroying or extinguishing the property. It means disposing of the
property in anyway. In the present case, after the attack on the State Museum X, Dr. Ares was
kept as a Hostage by the Militia for several days. After that he escaped from there with a
truck filled with priceless exhibits of the Museum. That was described as an impossible feat.
But the exhibits didn’t include the covfefe64. And neither was it found from Dr. Ares during
the investigation by the Special Investigation Team. All these facts clearly establish that there
had been no appropriation of the covfefe by Dr. Ares. Hence the physical act or actus reus
necessary to constitute the crime was not done by Dr. Ares. Hence, in the light of the laws,
cases, principles and facts it is proved beyond reasonable doubt that the decision of the
Special Court for the acquittal of Dr. Ares was in accordance with the law and fact and
should not be reversed.
3.2. The decision of Special Court for the acquittal of Jupiter Hestia was in accordance
with the law and fact.
Jupiter Hestia was tried by the Special Court for the allegation of conspiracy to commit theft
and was acquitted. The decision of the Special Court was in accordance with the law and fact.
According to the English law “If two or more persons agree together to do something
contrary to law, or wrongful and harmful towards another person, or to use unlawful means in
the carrying out of an object not otherwise unlawful, the person who so agree commit the
crime of conspiracy.”65 In other words, conspiracy is an agreement by two or more persons to
do an illegal act or a legal act by illegal means. And although the illegal act may or may not
be done in pursuance of agreement but the very agreement is an offence and is punishable.66
63
R. v. Pitham & Hehl, (1977) Crim LR 285; R. v. Morris, Anderton v. Burnside, [1983] 3 WLR 697; Eddy v.
Niman (1981) 73 Cr.App; R. v. Governor Pentonville Prison Ex parte Osman, [1990] 1 WLR 277
64
65
Halsbury’s Law of England, 4th Edn.,(1973), Vol. 10, pp. 310-11
66
State of Tamil Nadu v. Nalini, 1999 Cri. L.J. 3124 (S.C.); Hiralal Harilal Bhagwati v. CBI, New Delhi, 2003
Cri. LJ 3041 (SC)
Page 24
So for the commission of the crime of conspiracy the following ingredients have to be
satisfied: (a) There should be two or more persons (b) an agreement and (c) agreement must
be to do an illegal or a legal act by illegal means (Section 120 A of IPC). It was held in
Central Bureau of Investigation, Hyderabad v. Narayan Rao67, that agreement to do act is the
essence of criminal conspiracy. Direct evidence of conspiracy is rarely available. It has to be
proved on bases of circumstances prior to and after occurrence. Circumstances proved
however must clearly show that they were committed in pursuance of agreement between
persons conspiring. It was held in Param Hans Yadav v. State of Bihar68 “...if the prosecution
relies upon circumstantial evidence, a clear link has to be established and the chain has to be
completed, otherwise it would indeed be hazardous to accept a part of the link as a complete
one and on the basis of such incomplete evidence, the allegation of conspiracy cannot be
accepted.” So for establishing conspiracy a clear link of circumstances has to be established,
in absence of direct evidence, which led to the agreement between two or more persons for
committing the illegal act or legal act by illegal means. In the present case, there has been no
existence of such agreement. It could be deduced from the following chain of events. After
the hike in the price of bread in December 2009, a local movement began in a small Hokian
town. Initially, Jupiter Hestia supported the people’s demand through her video podcast but
later due to the rising national agitation on the issue of price of bread against the government
of Hoko she made requests to the people to support the government. As several public
demonstrations were made against the government which led to widespread violence and a
clampdown by the government. And the issue of price of bread was inextricably linked with
Hokian national pride.69 She also remarked on her podcast on 15th March 2010 that “My
people-pulse tells me that we need a distraction. Something, anything. Come on Hoko, let’s
do something else for a change...”70. So what she was doing was to create a distraction to
sooth the anger of the people of Hoko. On 19th March she changed her social handle and
tweeted “Been there too long #getmecovfefe”71 for creating a distraction and requesting the
people to stop the agitation. General Rouge also wanted to create distraction of the people
from the domestic politics. The tweet of General Rouge which got viral was accidently
tweeted as it was a personal message to his son which read “Son, still at the national sec.
67
(2012) IV Cri. L.J. 4610 (S.C.); Ashok Datta Naik & others v. State, 1979 Cri. L.J. (N.O.C) 95; Rajaram
Gupta v. Dharamchand, 1983 Cri. L.J. (MP) 612
68
1987 Cri. L.J. 789 (S.C.)
69
70
71
Page 25
meeting, looks like #getmecovfefe”72. As the President of Hoko, General Rouge had been
engaged in ensuring national security of the people. And with the help of Jupiter Hestia who
had maximum following among the Hokian population tried to create some distraction to
ensure security. On 25th March 2010, the Senate Assembly also passed a binding resolution
for empowering the military for ensuring the security of the people and culture of Hoko. 73 On
the basis of the circumstances a clear link or complete chain of events cannot be established
which led to the commission of the crime in pursuance of the conspiracy. There is no
agreement between Jupiter Hestia and the governing authorities (General Rouge and Hokian
Army) for the commission of the theft of covfefe. The only limitation upon the law is that
there must be a concluded agreement to commit the wrong, not just the negotiation for such
an agreement74. Also Jupiter Hestia cannot himself conspire to commit theft. Because the
requirement for conspiracy (under section 120 A of IPC) is that two or more persons must be
parties to the agreement and one person alone cannot be held guilty of the offence of criminal
conspiracy for the simple reason that one cannot conspire with oneself.75 So the charge of
conspiracy to commit theft could not be established as there was no agreement existing which
is a necessary element to prove the charge of conspiracy. Hence it is submitted that the
decision of the Special Court for acquittal of Jupiter Hestia for allegation of conspiracy to
theft must not be reversed.
PRAYER
In light of the issues raised, arguments advanced and authorities cited it is most humbly and
respectfully submitted that this Hon’ble Court may adjudge and declare that:
1. The entire investigation and trial pursuant to orders passed by the Hallbach Federal Court
in Re X and Y was contrary to the process of law and hence the convictions should be set
aside.
2. The arrest and prosecution of diplomat Jupiter Hestia was contrary to law and hence the
conviction should be set aside.
allegation of theft was in accordance with the law and fact; hence it should not be reversed.
72
73
74
Walker [1962] Crim. LR 458; Mills [1963] Crim. LR 181; O’Brien (1974) 59 CAR 222
75
Topandas v. State of Bombay, (1955) 2 S.C.R. 881 : A.I.R. 1956 S.C. 33.
Page 26
The court may also be pleased to pass any other order, which this Hon’ble Court may deem
fit in light of justice, equity and good conscience.
Sd/-
..............................
(Counsel for the “Appellant”)
Page 27

K.K. Luthra Appellant

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K.K. Luthra Appellant

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URN: 1460

XIV K.K. LUTHRA MEMORIAL MOOT COURT, 2018

IN THE HON’BLE FEDERAL COURT OF HALLBACH

MEMORIAL ON BEHALF OF THE APPELLANT

85. Walker, [1962] Crim. LR 458

B. LAWS AND RULES

C.TREATIES, BOOKS, REPORTS AND DIGESTS

D. INTERNATIONAL CONVENTIONS AND TREATIES

E. IMPORTANT ABBERIVATIONS AND DEFINTIONS

1. Hallbach is a federal democratic republic in Eastern Europe. It is rich in natural resources

Events leading up to and following the attack on city X and Y

The Appellants impugns three issues for consideration,

1. THE ENTIRE INVESTIGATION AND TRIAL PURSUANT TO ORDERS PASSED BY THE

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