TEAM CODE –01

XIV LC-1 ALL DELHI (NCR) MOOT COURT

COMPETITION, 2018

Before

THE HONOURABLE SUPREME COURT OF INDESH

Special Leave Petition

U/A 136

OF

THE CONSTITUTION OF INDESH

GOVERNMENT OF THE NICELAND

(PETITIONER)

V.

MR. ROBERT D’SOUZA

(RESPONDENT)

UPON SUBMISSION TO THE HON’BLE SUPREME COURT

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Table of Contents

SL. No. DELINEATIONS PAGE

1. LIST OF ABBREVIATIONS 3

2. INDEX OF AUTHORITIES 3

3. STATEMENT OF JURISDICTION 7

4. STATEMENT OF FACTS 8

5. STATEMENT OF ISSUES 10

6. SUMMARY OF ARGUMENTS 11

7. ARGUMENTS ADVANCED 12

8. PRAYER 26

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II. LIST OF ABBREVIATIONS

ABBREVIATION ACTUAL TERM

& And
AIR All India Records
Anr. Another
Corp. Corporation
ER England Records
Hon’ble Honourable
ICJ International Court of Justice
ILR International Law Reports
MP Madhya Pradesh
Ors Others
R. Rex or Regina
RBI Reserve Bank of India
SCC Supreme Court Cases
SCR Supreme Court Reports
UNODC United Nations Office of Drugs and Crime
v. Versus

INDEX OF AUTHORITIES

Sl. no. List of Judicial Precedents

1. Adams v Cape Industries 1990 Ch. 433
2. Affatiagato case, RG, 87 (1981), pp154-6
3. Air India Statutory Corpn. v. United Labour Union, AIR 1997 SC 645;
4. Akzo Nobel v The Competition Commission 2013 CAT 13 (21 June 2013).
5. Ammini E.D. v. Union of India, AIR 1995 Ker 252;
6. Arvinder Singh Bagga v. State of UP, AIR 1995 SC 117.
7. Baader Meinhof Group terrorist case (1977), ILR, 74, P 493
8. Beckett Investment Management Group v Hall 2009 1 A.C. 1391;
9. Bourke v Attorney General (1970), ILR, 55 p 558
10. Bugdaycay v. Secretary of State, (1987) 1 All ER 940
11. Caterpillar Financial Services (UK) Ltd. Saenz Corp Limited, Mr Karavias, Egerton Corp. 2007 I.C.R. 1539
(A.C);
12. Chahal v. United Kingdom, 23 EHRR 413.
13. Chameli Singh v. State of UP, AIR 1996 SC 1051;
14. Consumer Education & Research Centre v. Union of India, AIR 1995 SC 922;
15. D.O. Vyas v. Ghaziabad Development Authority, AIR 1993 All 57;
16. Delhi Development Horticultural Employees Union v. Delhi Admin., AIR1992 SC 789
17. Delhi Transport Corpn. V. DTC Mazdoor Congress, AIR 1991 SC 101;
18. Della Savia v Ministère Public de la confederation (1969), ILR, 72, p618
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19. Ex parte Kolczynski (1955) 1 QB 540

20. Extradition (Equadorian National) Case, ILR, 20 (1953), p 370
21. Extradition (Yugoslav refugee on Germany) Case (1959), ILR, 28 p347
22. Extradition of Greek National (Germany) Case, ILR, 22 (1955) P 520
23. Extradition of Member of Algerian Irregular Army Case (1961), ILR, 32 p 294
24. Farrar v Farrars Ltd., (1888) 40 ChD 395
25. Folkerts v State-Secretary of Justice (1978), ILR, 74, p 472
26. France v. Turkey, (The S.S. Lotus Case), 1927 PCIJ, [(Ser.A)]
27. Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 2 SCR 516;
28. G.N. Verma v. State of Jharkhand and anr., [2014] 4 SCC 282]
29. Gunmala Sales (P) Ltd. V. Anu Mehta, S.L.P (Crl.) No.1724 of 2013 17 October, 2014
30. In the Matter of the extradition of Mcmullen, AJ, 74(1980), p 434
31. In the Matter of the Requested extradition of Doherty (1984), ILR, 79 p 475
32. Inderpuri General Store v. Union of India, AIR 1992 J&K 11;
33. Khedat Mazdoor Chetna Sangath v. State of MP, AIR 1995 SC 31
34. Kishor Singh v. State of Rajasthan, AIR 1981 SC 625;
35. Lee v Lee's Air Farming Limited 1961 AC 12;
36. Macaura v Northern Assurance Co. 1925 AC 619
37. Maharashtra University of Health Sciences v. Sactchikitsa Prasarak Mandal, AIR 2010 SC 1325;
38. Mohan Lal Sharma v. State of UP, (1989) 2 SCC 314;
39. Mohini Jain v. State of Karnataka, AIR 1992 SC 1858;
40. Munshi Singh Gautam v. State of MP, (2005) 9 SCC 631;
41. N. Rangachari v. Bharat Sanchar Nigam Ltd.[2007] 5 SCC 108
42. Nicosia v wall(1971), ILR, 51, p 372.
43. Olga Tellis v. Bombay Municipal Corpn., AIR 1986 SC 180;
44. P.A. Jacob v. Supt. Of Police, Kottayams, AIR 1993 Ker 1;
45. Parmanand v. Union of India, AIR 1989 SC 2039 (paras. 7, 8);
46. Peate v Federal Commissioner of Taxation, [1964] HCA 84; 111 CLR 443; (1963) ALR 354
47. Prithipal Singh v. State of Punjab, (2012) 1 SCC 10 (25);
48. Public prosecutor v Zind(1961), ILR, 40, p214
49. R (Pretty) v. DPP, (2002) 1 All ER 1.
50. R v Governor of winson green Prison, Birmingham, ex parte Littlejohn (1975) 3 All ER 208
51. Raghubir Singh v. State of Haryana, AIR 1980 SC 1087;
52. Rajasthan Kisan Sangathan v. State of Rajasthan, AIR 1989 Raj. 10;
53. Rakesh Kaushik v. Supdt. Central Jail, New Delhi, AIR 1981 SC 1767;
54. Re Bohne, AJ, 62(1968), p784
55. Re colman, AD, 14(1947), NO 67
56. Re de Serclaes, ILR, 19, (1952), No 78
57. Re Finucane (1990)
58. Rudul Shah v. State of Bihar, AIR 1983 SC 1086
59. Salomon v Salomon, [1897] AC 22
60. Shaibya Shukla v. State of UP, AIR 1993 All 171;
61. Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, (2003) 7 SCC 749.
62. Sheela Barse v. State of Maharashtra, AIR 1983SC 378;
63. Shri Ambica Mills Ltd. 1897 AC 22
64. Siddharam Satlingappa Mhetre v. State of Maharashtra, AIR 2011 SC 312
65. SMS Pharmaceuticals Limited v. Neeta Bhalla and anr. [2005] 8 SCC 89;
66. State of Punjab v. Mohinder Singh Chawla, (1997) 2 SCC 83.
67. Stone & Rolls v Moore Stephens 2009 UKHL 39;
68. Subhash Kumar v. State of Bihar, AIR 1991 SC 420;
69. Sunil Batra I, AIR 1978 SC 1675.
70. Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1
71. T.V. Vetheeswaran v. State of Tamil Nadu, AIR 1983SC 361;

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72. Tata Engineering Locomotive Co. Ltd. v. State of Bihar and others, 1965 AIR 40, 1964 SCR (6) 885
73. The state v Schuman (1966), ILR, 39, P 433
74. United States V. Milwaukee Refrigerator Co, 142 F. 247 (1905)
75. United v mackin (1981), ILR, 79, p 459
76. UP Avas Evam Vikas Parishad v. Friends Co-op. Housing Society Ltd., AIR 1996 SC 114;
77. Vijayalakshmi Tripathy v. Managing Committee of Working Women Hostel, AIR 1992 Ori. 242;
78. Vodafone International Holdings B.V. v. Union of India & Anr. [S.L.P. (C) No. 26529 of 2010, dated 20
January 2012]
79. VTB v Nutritek [2013] UKSC 5
80. Yugoslav Terrorism Case (1978), ILR, 74, 509

SL. No Name of Books & Journals Referred

1. DD BASU, Commentary on the Constitution of India, S.S. Subramani eds., Vol. 5, 9th Ed. (2014)
2. T.M. Cooley, A treatise on the Constitutional Limitation, 1st Indian reprint
3. AN introduction to the study of the Law of the constitution, 10 th Ed. 4th Indian reprint (2004)
4. H.O. Agrawal, International Law and Human Rights, 21 st ed. (2016)
5. Oppenheim’s International Law, Vol. I, 9thed. (1992)
6. R.C. Hingorani, ‘Modern International law’, 2nd Ed. (1984)
7. M.P. Jain, Indian Constitutional Law, 7th Ed. (2014)
8. Year book of International law commission, Vol II, (1960)
9. Starke’s International Law, 11 th ed. (1994)
10. D.P. O’connell,’International Law’ Vol. II (1970)
11. Gilbert, International and Comparative Law Quarterly, Vol 34, (1985)
12. Gower & Davies, Principles of modern Company Law, 8 th Ed., (2008)
13. Avtar Singh, Company Law, 16th Ed., (2015)
14. Ratanlal & Dhirajlal, The Indian Penal Code, J. K T Thomas & M A Rashid eds., 35th ed. (2017)

Sl. No. List of Statutes and Conventions

1. The Companies Act, 2013
2. The Contract Act, 1872
3. The Negotiable Instrument Act, 1881
4. The Constitution of India, 1950
5. UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), 2015
6. Convention Against Torture & Other Cruel, Inhuman or Degrading Treatment or Punishment, 1987
7. International Covenant on Civil and Political Rights, 1976
8. Declaration on the Protection of All Persons from Being Subjected to Torture & Other Cruel, Inhuman or
Degrading Treatment or Punishment, 1975
9. Declaration on the Human Rights of Individual who are not nationals of the Country in which they live, 1985
10. Basic Principles for the Treatment of Prisoners, 1990
11. The Extradition Act, 1962
12. UN Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules), 1990
13. UN Universal Declaration of Human Rights, 1948
14. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violation of International Humanitarian Law, 2005
15. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 1988
16. Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition
of the death penalty, 1989
17. Indian Penal Code, 1860
18. The Prevention Of Money-Laundering Act, 2002
19. UK Extradition Act, 2003
20. Extradition Treaty between India and UK, 1993
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STATEMENT OF JURISDICTION

The appellant have approached the Hon’ble Supreme Court of Indesh u/a 136 of the Constitution
of Indesh. Leave has been granted by this Hon’ble Court and the matter has now been listed for
the arguments. The provision under which the appellant has approached this Hon’ble Court and
to which the respondent humbly submits, is read herein under as:

Article 136 of the Constitution of Indesh:

“(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 Indesh.

(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

Niceland is one of the largest democracies in the world with population of over 500 million.
The country is rich in natural resources but lacks sufficient basic amenities like schools,
colleges, hospitals, courts and prison systems. Despite all such lacunas, the country is a favorite
destination for large scale investments & varied business ventures.

Robert D'Souza, a notable business tycoon of Niceland, has invested in IT sector, holding
nearly 8% of the total investments in the country. He was a chairman of more than thirty
Sparrow Group of Companies (SGC). He had his family settled in Indesh, a developed
economy in the world and a dream destination for most of the educated youth of Niceland.
Both the countries have entered into number of economic cooperation agreements and double
taxation avoidance agreements. However, their closer relation dates back to 1993 when they
have signed an Extradition Treaty.


In March 2010 Niceland went for the general elections for the Lower-House of the Parliament.
D’Souza had supported the Niceland People Party (NPP). He strongly condemned any linkage
between national politics & labour movements as it is an obstacle for economic growth of the
country. He had generously funded the NPP’s political campaign & the party successfully won
the elections. In January 2013 the NPP has recommended the name of Robert D’Souza & made
him a MP in the Upper. He introduced a bill, which was not passed, in the parliament
restraining labours & trade unions from holding political meetings or direct involvement of
political parties in relation to trade or business.

Niceland had suffered an economic slowdown in July 2013 on account of various international
& domestic factors. Sparrow IT company was one of the companies seriously hit by the
economic slow-down. To cope with the situation, the government has carried out a corporate
law reform and has adopted a new Niceland Companies Act in 2013 and has simplified the
procedures for easy of doing business.

In March 2014 SGC, under the chairmanship of D'Souza, began negotiation for loan
arrangements with different banks. Existing same assets of the company was shown as security
for different banks, however, considering the stalwart business image of D'Souza & his
political & international links, many banks lent huge sum of money as loans. Despite securing
loans SGC could not do well in business. The companies were not in a position to pay even
salaries for its employees. To the contrary, his personal assets increased over time. Three
cheques issued by D'Souza as chairman got dishonoured and cheque bounce cases are also
pending against him. 


Niceland once again went for polls to its Lower-House of the Parliament in March 2015.
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Though D'Souza financially supported the political campaigns of NPP but not to the extent of
2010 general elections. NLP won the 2015 general elections with huge majority & on the other
side, SGC defaulted most of the loans borrowed. Meanwhile, D’Souza was named in the
Victoria & Nile Papers leak of confidential documents relating to offshore investments.

Investigation against Mr. Robert D’Souza for financial fraud & money 
laundering was
initiated in August 2015. The ED of Niceland has issued an arrest warrant against Mr. D'Souza
& revoked his passport by the end of 2015. He resigned as a MP in January 2016, but evaded
arrest till July 2016 & finally managed to leave the country to settle along with his family in
Indesh. Niceland got international arrest warrant from Interpol against D'Souza by October
2016 & Indeshian Police Extradition Unit finally arrested him. In April 2017 Niceland formally
requested Indesh to extradite Mr. D’Souza for his financial crimes in accordance with the
Extradition Treaty of 1993.

Niceland argued before the trial court that Mr. D'Souza has maliciously borrowed huge loans
from banks more than the assets by showing the same property as security for loans in different
banks. His conduct amounts to fraud & he also faces charges of money laundering & off shore
investment. To the contrary, Mr. D'Souza argued that: (i) the loans were borrowed by SGC as
independent legal persons & he shall not be made liable; (ii) maliciously involving his name
in the case is purely a political vendetta for supporting a different political party; & (iii) jail
conditions in Niceland are pathetic, which would amount to deprivation of his fundamental
rights guaranteed under the Indeshian Constitution.

A recent HRW Report of 2016 describes the jails condition of Niceland as filthy, being shelter
for snakes, rats & cockroaches; Scottish Expert Commission reports that: “one meagre meal a
day, refusal of medical treatment even to cancer patients, overcrowding of cells, inadequacy
of medical attendant for inmates, and flagrant violation of extradition assurances in few
instances are some of the prison facts in Niceland by the end of 2017”. The Human Rights of
Commission of Niceland, in its annual report, condemns that “jail conditions in Niceland is
inadequate for an average human existence”. In January 2018 the trial court transferred the
case to the Supreme Court of Indesh, for a final decision. Accordingly, Supreme Court has
seized the matter for discussion.

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STATEMENT OF ISSUES

1. Whether D'Souza could be held accountable for the loans borrowed by Sparrow
Group of Companies; and whether his conduct amounts to fraud in the whole
episode?

2. Whether the charges made against D’Souza are of a political character and whether
extradition request be rejected on such grounds?

3. Whether poor jail condition in the requesting state could be a ground for rejection
of extradition request? And whether the courts of requested state has jurisdiction to
decide such issues?

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SUMMARY OF ARGUMENTS

Issue 1: Whether D'Souza could be held accountable for the loans borrowed by Sparrow Group
of Companies; and whether his conduct amounts to fraud in the whole episode?

That it is submitted to this Hon’ble Court, that the respondent cannot be held liable for the loans
borrowed by the company in any manner whatsoever as the loans were borrowed by the company (a
juristic legal person) with the company and banks intending to contract only with each other and the
former can be directly held laible for the loans borrowed by it. Furthermore, the veil of corporate
personality can not be lifted as there was no fraud committed or improper conduct by the respondent
whether in the process of borrowing loans or the series of events leading up to the company’s default
on the loans it borrowed.

Issue 2: Whether the charges made against D’Souza are of a political character and whether
extradition request be rejected on such grounds?

It is most respectfully submitted before the Hon’ble Court, that the charges against the respondent are
faux and a shroud to the politically motivated witch hunt of the ruling government of Niceland. The
respondent is being prosecuted for his steadfast backing of the previous ruling government and his
public endorsement of the ideas that aren’t in alignment with the current ruling government. The
charges against the respondent are trumped up and that during his tenure as the chairman of Sparrow
Group of Companies he conducted himself with nothing but forthrightness and in good faith. The
respondent has become the unfortunate patsy for the government’s media fueled witch hunt to clean
up Niceland’s economy. Therefore, the request for extradition of the respondent should be strongly
denied.

Issue 3: Whether poor jail condition in the requesting state could be a ground for rejection of
extradition request? And whether the courts of requested state has jurisdiction to decide such
issues?

It is categorically establishable by the facts and circumstances in that Niceland lacks basic amenities
like educational, medical, court as well as prison institutions, which certainly is a direct attack on
human dignity & no person can live without the means of living. The rule of Jus Cognes overrides
the principle of Pacta Sunt Servanda, i.e. a treaty is void if its performance involves an act which is
illegal under international law & if it is declared to be so by the International Court of Justice.
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ARGUMENTS ADVANCED

Issue 1 : Whether D’Souza could be held accountable for the loans borrowed by Sparrow
Group of Companies, and whether his conduct amounts to fraud in the whole episode.

.1 It is most humbly submitted before this Hon’ble Court that the legal conjuring of legal
personality in a company renders the company a legal person capable of engaging in contract,
incur liabilities and own property amidst a plethora of other functions, while protecting its owners
and controllers from liability for actions carried out in the name of such Company. This degree of
control, distinct legal personality and limited liability elevates the Company as being one of the
most viable and successful innovations in law and perhaps the “greatest single discovery of modern
times”.

1.2 The House of Lords in Salomon v Salomon1 recognized the principle of separate legal entity
of company which says that a company has a separate existence from its members 2. This concept
thus protects the shareholders from being personally liable for the company’s wrong and its
obligations . Windeyer J, in the High Court in Peate v Federal Commissioner of Taxation3, stated
that a company represents: A new legal entity, a person in the eye of the law. The Supreme Court
in the case of Tata Engineering Locomotive Co. Ltd. v. State of Bihar and others4 held that the
corporation is a natural person and has its own existence. The entity of member is entirely distinct
from its members, has its own name and seal, Its own assets are separate from its members, and
similarly the liability of its shareholders is limited to the amount of capital invested by them.

1.3 The corporate structures exist for genuine purposes, and the time tested principles of limited
liability cannot be contravened without proper cause. In United States V. Milwaukee Refrigerator
Co5., it was observed conditions for lifting of the corporate veil of personality. It was noted that

1
[1897] AC 22 (Salomon).
2
See also Macaura v Northern Assurance Co. 1925 AC 619;
Lee v Lee's Air Farming Limited 1961 AC 12;
Farrar v Farrars Ltd., (1888) 40 ChD 395
3
[1964] HCA 84; 111 CLR 443; (1963) ALR 354
4
1965 AIR 40, 1964 SCR (6) 885
5
142 F. 247 (1905)
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when the notion of legal entity is used to defeat public convenience, justify wrong, protect fraud
or defend crime, the law will regard the corporation as an association of persons. In Life Insurance
Corporation of India v. Escorts Limited and Others6, the Supreme Court laid down statutory
provisions and judicial provisions as the two major instances when the corporate veil can be lifted.
The former, applicable to this case, is Fraudulent conduct (Section 542 of the Company’s Act,
2013). The Judicial provisions laid down by the same were fraud or improper condition7, tax
evasion8, company as agent9. However, as will be further demonstrated none of the aforementioned
conditions are being fulfilled in the present case. In no way has Mr D'souza committed Fraud in
the process of garnering the loans or in his conduct as the chairman of Sparrow Group of
Companies.

1.4 The counsel would like to bring to the attention of this Hon’ble court the case VTB v Nutritek10.
In this case, the claimant bank, VTB, entered into a loan agreement with a third party, RAP, to
fund the acquisition of various dairy plants from Nutritek. It was submitted by VTB’s that once it
had entered into the loan agreement it discovered that a Mr Malofeev controlled bother VTB and
Nutritek. Therefore claiming that VTB was induced to enter the loan agreement by fraudulent
representations made by Nutritek regarding its control of RAP. The main issue concerning the
Court of Appeal in VTB v Nutritek was whether piercing the corporate veil could lead to a
situation where non-contracting parties would become contractually bound under an agreement
entered by a separate entity that they controlled or that controlled them. It was held that, In any
event, it would be wrong to hold that Mr Malofeev should be treated as if he was a party to an
agreement, in circumstances where (i) at the time the agreement was entered into, none of the

6
1986 AIR 1370, 1985 SCR Supl. (3) 909
7
Shri Ambica Mills Ltd. 1897 AC 22
8
Vodafone International Holdings B.V. v. Union of India & Anr. [S.L.P. (C) No. 26529 of 2010, dated 20 January
2012]
9
See also Adams v Cape Industries 1990 Ch. 433;
Caterpillar Financial Services (UK) Limited v Saenz Corp Limited, Mr Karavias, Egerton Corp. 2007 I.C.R. 1539
(A.C);
Beckett Investment Management Group v Hall 2009 1 A.C. 1391;
Stone & Rolls v Moore Stephens 2009 UKHL 39;
Akzo Nobel v The Competition Commission 2013 CAT 13 (21 June 2013).
10
[2013] UKSC 5
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actual parties to the agreement intended to contract with him, and he did not intend to contract
with them, and (ii) thereafter, Mr Malofeev never conducted himself as if, or led any other party
to believe, he was liable under the agreement.

1.5 Similarly in the present case at the time of entering into the loan agreement the banks were
clear of the fact that they were contracting not with Robert D'souza but with the Sparrow group of
Companies and neither did D’Souza intend to contract with them personally . Furthermore, the
loans were garnered to keep the company afloat and in no way or action explicit or otherwise did
Robert D'Souza claim to be liable under the agreement. Therefore, making D'souza a non-
contracting party and not liable for the loan taken by the company. This approach follow from one
of the most fundamental principles on which contractual liabilities and rights are based, namely
what an objective reasonable observer would believe was the effect of what the parties to the
contract, or alleged contract, communicated to each other by words and actions, as assessed in
their context.

1.6 It is submitted to this Hon’ble Court that various market practices exist that allow using same
assets as security for multiple loans. One of such practices is Cross collateralization. It is the act
of using an asset that is currently being used as collateral for a loan as collateral for a second loan.
If the debtor in this case is unable make either loan's scheduled repayments in time, the affected
lender(s) can eventually force the liquidation of the asset and use the proceeds for repayment11.
Another such practice is of Joint Lending by Banks. Under this practice the loan program of
multiple banks will be under common loan documentation and common asset classification for the
combined limits sanctioned by them. For this purpose, participating banks enter into an inter-se
agreement which allows these banks to hold common security against their advances, leading to
the creation of a Parri Passu charge. In the event of default of repayment from the borrower the
joint lenders may decide to dispose off the security held by them in order to recover their dues.

1.7 Therefore, in using existing same assets of the company as security for loans from various
banks Robert D’Souza was following an existing and well practiced market strategy. It is also
pertinent to mention here that Section 25 of the Penal Code states that a person is said to do a thing

11
www.investopedia.com/articles/personal-finance/080316/crosscollateral-loan-how-does-it-work.asp
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fraudulently if he does that thing with the intention to defraud but not otherwise. There are two
essential elements to the commission of this crime deceit or intention to deceive and actual injury
or intent to expose some person to actual injury or risk of possible injury12. Considering the lack
of material evidence to suggest that Robert D'Souza acted in a maleficent manner with the
intention to defraud while taking the loans , it can be concluded that D'Souza can not be held liable
for the same. Arguendo, If the party alleging fraud13 had the facts before it or had the means to
know them, it could not be said to have been defrauded, even if a false statement has been made14.
In the present case the banks had access to The Central Registry of Securitization Asset
Reconstruction and Security Interest that has been incorporated for the very purpose of operating
and maintaining the central registry under and preventing frauds involving multiple lending against
the security of the same property. The banks had not only the ability but also the duty to check if
the property had been mortgaged before, the very fact that the banks happily lent huge sums of
money to the respondent goes to show the lack of fraudulent behavior on part of the respondent.
1.8 That it is humbly submitted to this Hon’ble Court, default to honour commitments to repay
borrowed funds amounts to a breach of contract. Mere breach of contract cannot give rise to
criminal prosecution under Section 420 IPC, unless fraudulent or dishonest intention is shown
right at the beginning of the transaction time, when the offence is said to have been committed.
The only right of the aggrieved party is to approach the civil court to attach and sell securities or
other unencumbered properties and recover the defaulted loan. In the present case Niceland
suffered an economic slowdown in 2013 and the Sparrow Group of Companies weren’t immune
to this dramatic fall in the market. The loans taken by the company in 2014 were for the purposes
of reviving the company and keeping it afloat and not for any other fraudulent means that would
make the respondent liable. Furthermore, the mention of the respondent in the Victoria and Nile
papers points out only the fact that Mr. D’Souza had offshore investments in Indesh. Investment
in offshore entities has come to be viewed as an intrinsically wrong activity in public perception
over the years.Therefore, what must be insured in this case is not a media trial based on public
assumptions but a fair trail based on facts. And there is no evidence to show that it has been used
to facilitate money laundering, tax evasion and fraud.

12
History Of Criminal Law Of England, Vol II, p. 121.
13
under section 17 of the Contract Act
14
Kamal Kant Paliwal v Prakash Devi Paliwal AIR 1976 Raj 79;
See also ARSP Subramanian Chetty v Official Assignee of Madras AIR 1931 Mad 603, 133 IC 372
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1.9 It is submitted to this Hon’ble Court that In the case of Gunmala Sales (P) Ltd. V. Anu Mehta
15
the Supreme Court held that in a case under sections 138 and 141 of the negotiable instrument
act it is necessary to specifically aver in a complaint under section 141 of the negotiable instrument
act, that at the time of the offence, the accused person was in charge and responsible for conduct
of business of the Company. The Supreme Court further observed that merely being a Director of
a Company is not sufficient to make the person liable under Section 141 of the Act and that the
Director in a Company can not be deemed to be in charge of and responsible to the Company for
the conduct of its business. Similarly in G.N. Verma v. State of Jharkhand and anr.16 it was held
that Mere bald statement that the Director is in charge of responsible to the company is not
sufficient to maintain prosecution. The respondent is the chairman of more than thirty sparrow
group of companies while in name he holds managerial responsibility of the company the Hon'able
court can not come to the rational conclusion that he would be privy to the day to day business
conduct of the company. Therefore, absolving the respondent of any liability under the section 141
of the negotiable instrument act.17

Conclusion
The counsel would like to sum up that the charges against the respondent are trumped up and that
during his tenure as the chairman of Sparrow Group of Companies he conducted himself with
nothing but forthrightness and in good faith. The respondent has become the unfortunate patsy for
the government’s media fueled witch hunt to clean up Niceland’s economy.

ISSUE 2: Whether the charges made against the respondent (D’Souza) are of a
political character and whether extradition request be rejected on such grounds?
1. It is humbly submitted before this Hon’ble Court that the charges levied against the
respondent are trumped up and his name has been maliciously involved in cases of fraud
to conceal the ruling governments political vendetta. Therefore, due to the blatant political
15
S.L.P (Crl.) No.1724 of 2013 17 October, 2014
16
[2014] 4 SCC 282]
17
See also SMS Pharmaceuticals Limited v. Neeta Bhalla and anr. [2005] 8 SCC 89;
N. Rangachari v. Bharat Sanchar Nigam Ltd.[2007] 5 SCC 108
15
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character of the charges against the respondant the request for extradition made by
Niceland should be rejected.

2. The counsel would like to begin by highlighting what constitutes a charge of political
character. The extradition treaty between Indesh and Niceland underlines that a person
shall not be extradited if he is charged with an offence of a political characteristic. 18
However it does not mention what gives an offence political colour. Moreover The
Extradition Act of India, 1962 which is pari materia to laws of Indesh and Niceland also
fails to define the same. Therefore the counsel would like to being to the attention of this
Hon'ble court The Extradition Act 2003 of United Kingdom. This Act uses word “political
opinion” to define the bar to extraditions along with race, religion, gender, sexuality,
nationality etc. The counsel contends that Mr. D'souza is being prosecuted not for the
alleged fraud he committed but because his loyalty lay with the previous ruling government
and he abundantly funded their election campaign.

3. The importance of “political opinion” in the assessing the political character of a charge
or offence has also described in revised manual on the “Model treaty on extradition” of
United Nations by its Office on Drugs & Crimes also mentions similar grounds in its
Article 3 which discusses the mandatory grounds for refusal 19. In Germany politically
prosecuted persons not only get relief from extradition but are also provided asylum under
its basic law20. A closer study of the clauses of the extradition Act of UK, Germany and
model treaty on extradition of UNODC reflects a similar language that a person who might
be prosecuted or who might be prejudiced at trial on the basis of “political opinion” needs
to be safeguarded and in the manual it is further clarified that it is based upon the spirits of
covenant to status of refugees2122 by UN high commissioner of Refugees23.

4. It is most respectfully submitted before the Hon’ble Court, “Littlejohn case24” of

197525concluded that the weight of authority showed that a political offence was such that
the requesting state is anxious to obtain possession of the wrongdoer’s person in order to

18 Indesh- Niceland treaty ARTICLE 4 (1) (The Political Offence Exception), p5 of moot proposition.
19
Art. 3 (b) If the requested State has substantial grounds for believing that the request for extradition has been
made for the purpose of prosecuting or punishing a person on account of that person's race, religion, nationality,
ethnic origin, political opinions, sex or status, or that person's position may be prejudiced for any of those reasons;
of UNODC’s Model Treaty Extradition Revised Manual.
20
In the Federal Republic of Germany the Law on International Assistance in criminal Matters(ILM, 24(1985), p945)
Sec 6 (1) provides for extradition to be refused for a political act or an act connected with such an act; Sec 6 (2) It
is also not to be granted if the accused , if extradited, would be persecuted , punished or prejudiced because of his
race, religion, citizenship, social grouping or Political beliefs.
Art 16(2) of the basic law for the federal republic of Germany provides that the politically prosecuted shall enjoy
the right to asylum.
21
Inspired by the principle of non-refoulment contained in the Convention relating to the Status of Refugees, it
enables a party to refuse extradition if it determines that the extradition request is discriminatory in its purpose or
if the subject of the request may be prejudiced because of one of the enumerated discriminatory grounds.
22
Folkerts v State-Secretary of Justice (1978), ILR, 74, p 472
23
Nicosia v wall(1971), ILR, 51, p 372.
24
R v Governor of Winson Green Prison, Birmingham, ex parte Littlejohn (1975) 3 All ER 208 pp 211-13
25
R v Governor of Winson Green Prison, Birmingham, ex parte Littlejohn (1975) 3 All ER 208 pp 211-13
16
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punish him for his politics rather than for the simple criminal offence referred to in the
extradition proceedings. In the current case it is pertinent to mention before the Hon’ble
court that respondent as a member of parliament in the previous ruling government in the
upper house of Niceland’s parliament and tried bringing a bill which “restrained labours
and trade unions from holding political meetings or direct involvement of political parties
in relation to trade or business” in 2013, which was reflectively different from the policies
of the current government in power. However, due to strong political opposition this bill
could not pass but it was enough to generate a hatred among left wing parties notably
Niceland labour party (NLP) whose politics is based upon their association with Trade
unions. More importantly, it is the Niceland Labour party which has formed government
in Niceland and hence, the current weight of authority behind this extradition request.
5. Another aspect of this weighty extradition request is that the current NLP led government
of Niceland wants to exemplify respondent’s case as a victory over opposition and its
finances. It’s an attempt to please its union leaders which often view respondent as “class
enemy of Labour union” because of his pro right wing anti- labour union political opinion.
The extradition of respondent can charge the political environment of Niceland where his
mere extradition may be hailed as a victory. Such charged environment doesn’t lead to a
neutral investigation as media trial and many other such forms of propaganda shall be
placed to change the opinion of the public which will again be harvested by NLP in
garnering popular sentiments. Thus, probabilities are high that the charge of ordinary crime
namely “Fraud” is being used to disguise the political reasons for which petitioners actually
requires extradition.
Article 4.4, of Inter-American Convention on Extradition 1981, which provides for
extradition to be denied in respect of an ordinary criminal offense prosecuted for political
reasons26. Similarly, Article 3 of the council of Europe Convention on Extradition 1957
also discusses about the denial of extradition if the requested party has substantial grounds
for believing that a request for extradition for an ordinary criminal offence has been
made with the purpose of prosecuting or punishing a person on account of his race,
religion, nationality or political opinion, or that the person’s position may be prejudiced
for any of these reasons27. Thus, we see that coloring of ordinary crime has been used to
disguise the political motives behind this extradition which are based upon the prosecution
of respondent for his political opinion.

Conclusion
Hence, in the absence of the proper definition of Charges of political character it shall be in the
interest of the Justice that universally accepted and internationally framed Model extradition treaty
manual may be followed to define the political character of a charge. In light of the above
arguments it is requested to the Hon’ble court that under article 4(1) of Extradition treaty between
the Government of the Niceland and the Government of the Republic of Indesh. The charges

26
ILM, 20 (1981),P 723.Article 4 of the Inter-American Convention on Territorial Asylum 1954 excludes extradition
of persons who are sought for political offences, or for common offences committed for political ends, or when
extradition is solicited for predominantly political motives’ ( BFSP, 161 (1954), P 566).
27
As the convention does not define ‘political offence’, the criteria developed in the municipal law of a requested
state can continue to apply; Della Savia v Ministère Public de la confederation (1969), ILR, 72, p618.
17
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levelled against Mr. D’souza may classified as of political character and the demand for extradition
may kindly be rejected.

18
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ISSUE 3: Whether Alleged Jail Condition In The Requesting State Shall Be A Ground For
Rejection Of Extradition Request & Whether The Courts Of The Requested State Have
The Jurisdiction To Decide Such Issues?

1. That it is humbly submitted before this Hon’ble Court, the counsel on behalf of the
respondent i.e. Robert D’Souza will be dealing with the jurisdiction of the requested state
(Indesh) to decide issues like poor jail conditions of Niceland & whether these jail
conditions vis-à-vis a ground for rejection of extradition request.28 Further, it is humbly
submitted before this Hon’ble Court that the human rights are defined as those minimum
rights, which every individual must have against the State or other public authority by
virtue of his being a member of human family, irrespective of any other consideration29.

2. In the modern “Welfare Philosophy” it is for the State to ensure the essentials of life to all.
While invoking the provision of Art. 21 & by referring to the oft-quoted statement of
Joseph Adison “Better to die ten thousand times than wound my honour”, this Hon’ble
Court posed itself a question “If dignity or honour vanishes, what remains of life?”
emphasizing the significance of right to life & personal liberty guaranteed under the
Constitution of Indesh in its Part III. 30 In addition, the International machineries are
calculable to the extent that many human rights denial results from the action or inaction
of the governments themselves, internals pressures for reform having proved ineffective &
therefore, the only hope for such a change in such circumstances may lie in international
persuasion or pressure. That the above-mentioned action & in action of the government of

28
Extradition no legal duty- Clarke, op. cit. pp. 1-15, tries to prove that a duty to extradite criminals does exist, but
the result of all his labour is that he finds that the refusal of extradition is "a serious violation of the moral
obligations which exist between civilised States" (see p. 14). But nobody has ever denied this as far as the ordinary
criminal is concerned. The question is only whether an international legal duty exists to surrender a criminal. And
this legal duty States have always denied.
29
by D.D. Basu. ‘Human Rights in Constitutional Law’, (1994), p. 5. According to Bennett “ Human Rights include
those areas of individual or group freedom that are immune from governmental interference or that, because of their
basic contribution to human dignity or welfare, are subject to governmental guarantee, protection, or promotion”
(International Organization, 3rd Edition, p. 258)
30
Khedat Mazdoor Chetna Sangath v. State of MP, AIR 1995 SC 31; Siddharam Satlingappa Mhetre v. State of
Maharashtra, AIR 2011 SC 312
19
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Niceland can be traced from police atrocities, intimidation, harassment & use of third
degree methods to extort confession leading to custodial deaths.31

3. Jurisdicton of the Requested State to decide issues related to poor jail conditions
That Article 3 of UDHR states, “Everyone has the right to life, liberty and security of
person.” Also, as stated in Article 14 that, “Everyone has the right to seek & enjoy in other
countries asylum32 from persecution.” Whilst, Declaration on Territorial Asylum 1967
states, that a person seeking asylum from persecution should not be rejected at the frontier;
or if entered the territory, he should not be expelled or compulsorily returned.33 Further, it
is categorically establishable by the facts and circumstances in para 1 that Niceland lacks
basic amenities like educational, medical, court as well as prison institutions. Also it is set
down explicitly in the reports34 in para 10, that Niceland has overcrowded & filthy jail
conditions which lack medical attendants even to the cancer patients. A place being shelter
for snakes, rats & cockroaches, which certainly is a direct attack on human dignity & no
person can live without the means of living, that is, the means of livelihood.35 Ergo, if the
respondent is extradited he will be ill-treated on account to the poor jail conditions in
Niceland.

4. That, the Convention Against Torture (CAT) provides for the principle of non-
refoulement36 & for universal jurisdiction, irrespective of the nationality of the respondent

31
D.K. Basu v. State of West Bengal, AIR 1997 SC 610; Law Commission of India, 113 th Report on “Injuries in
police custody”; Cyril Phillips Committee Report, Report of Royal Commission on Criminal Procedure; National
Police Commission in India, 3 rd Report.
32
Article 1 of Draft Convention on Territorial Asylum states that the grant of asylum is a sovereign right of a State
33
Article 3, UN Declaration on Territorial Asylum, 1967
34
Human Rights Watch Report 2016; Scottish Expert Commission on Prison Condition in Niceland; & Human
Rights Commission of Niceland (Para 10)
35
Olga Tellis v. Bombay Municipal Corpn., AIR 1986 SC 180; Delhi Transport Corpn. V. DTC Mazdoor Congress,
AIR 1991 SC 101; Delhi Development Horticultural Employees Union v. Delhi Admin., AIR1992 SC 789
36
The prohibition of sending, expelling, returning or otherwise transferring (refoulement) a refugee to “territories
where his life or freedom would be threatened on account of his race, religion, nationality, membership of a
particular social group” is also known as the principle of non-refoulement. According to the legal principle of non-
refoulement (from the French refouler, “to force back”), a state may not return a person to a place where the person
is sufficiently likely to suffer violations of certain rights.
20
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or any treaty37, which undisputedly gives Indesh the jurisdiction38 to decide such issues
where the resopondent will face constant torment. Right to life is the most fundamental of
all human rights, & any decision affecting human life, or which may put an individual’s
life at risk, must call for anxious scrutiny.39 This sancity of human life is recognized in all
civilized socities & their legal system & by the internationally recognized statements of
human rights.40 Thus, this Hon’ble Court has implied a right against torture, etc. by way of
interpretation of Art. 21 along with UDHR41 & ICCPR42, which deals with right to life &
liberty. Connoting the duty of of the extraditin State, the Supreme Court of UK held in R.
v. Secy.of State for the Home Deptt.43 that, in case there is a risk of inhuman & degrading
treatment to the asylum seekers, if returned to the requesting State, then the requetsed State
must not send them back.

5. That the right to life shall not be read, therein, as “extinction of life”, ipso facto the
egregious jail conditions in Niceland is certainly a miserable place on earth for human
existence & inarguably, not in par with the ‘UN Standard Minimum Rules for the
Treatment of Prisoners (the Nelson Mandela Rules)’44, which require the categorization of
prisoners45, accomodation46 meeting the requirements of health47 which includes clean
bedding48 & food49, etc.50 Whilst the prison inmates in Niceland are bereft of meagre meal
a day, likewise live in cells with flithy conditions which provide shelter to snakes and rats

37
Article 3 (1), No State party shall expel, return (“re-fouler”) or extradite a person to another State where there are
substantial grounds for believing that he would be in danger of being subjected to torture. Also, Article 8.
38
Art. 6, Every one has the right to recognition everywhere as a person before the law, United Nations Universal
Declaration of Human Rights, 1948.
39
Bugdaycay v. Secretary of State, (1987) 1 All ER 940
40
R (Pretty) v. DPP, (2002) 1 All ER 1.
41
Art. 5, No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, United
Nations Universal Declaration of Human Rights, 1948.
42
Art. 7, No one shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment,
International Covenant on Civil and Political Rights, 1976.
43
(2014) 2 WLR 409: 2014 UKSC 12.
44
The United Nations Standard Minimum Rules for the Treatment of Prisoners were adopted by the United
Nations General Assembly on 17 December 2015 after a five-year revision process. They are known as the Nelson
Mandela Rules in honor of the former South African President Nelson Mandela.
45
Separation of Categories, Rule 11, pg. 10 of UN Standard Minimum Rules for the Treatment of Prisoners.
46
Accommodation, Rule 12-17, pg. 10 of UN Standard Minimum Rules for the Treatment of Prisoners.
47
Health-care services, Rule 24-35, pg. 12 to 15 of UN Standard Minimum Rules for the Treatment of Prisoners.
48
Clothing & Bedding, Rule 19-21, pg. 11 of UN Standard Minimum Rules for the Treatment of Prisoners.
49
Food, Rule 22, pg. 12 of UN Standard Minimum Rules for the Treatment of Prisoners.
50
See Justice J.S. Verma, The New Universe of Human Rights, 2004, Edn., pp. 131-133.
21
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(Para 10). As held in plethora of cases51, that right to live guaranteed in any civilised society
implies the right to food, water, decent environment, medical care & shelter which are basic
human rights, where a person may have opportunity to grow & rehab.

6. Further, in Julian Paul Assange v. Swedish Prosecution Authority 52, Assange-founder

of Wiki Leaks was granted asylum by Ecuador in its Embassy in United Kingdom on the
ground that he is an activist for freedom of the press & expression and if extradited he
might be tortured or given death sentence. Correspondingly, the court held that the
requested state must wave off the extradition request where, if a person extradited, would
not get fair trail or treatment in the requesting state.

7. Jus Cognes over-rides the principle of Pacta Sunt Servanda in the instant case
That the doctrinal approach53 emphasised the concept of Jus Cogens, acknowledging that
the majority of rules of international law, to which Pacta Sunt Servanda is also a part, are
dipositive in character Jus Dispositivum, i.e. laws capable of being modified by contrary
consensual agreements, proclaim the existence of certain rules so fundamental a character
that treaties concluded in violation of them are void.54 Jus Cogens, a peremptory norm,
refers to certain fundamental, overriding principle of international law, from which no
derogation is ever permitted.55 The doctrine found support in the reports of the Special

51
Chameli Singh v. State of UP, AIR 1996 SC 1051; Consumer Education & Research Centre v. Union of India,
AIR 1995 SC 922; P.A. Jacob v. Supt. Of Police, Kottayams, AIR 1993 Ker 1; D.O. Vyas v. Ghaziabad
Development Authority, AIR 1993 All 57; Subhash Kumar v. State of Bihar, AIR 1991 SC 420; Vijayalakshmi
Tripathy v. Managing Committee of Working Women Hostel, AIR 1992 Ori. 242; Air India Statutory Corpn. v.
United Labour Union, AIR 1997 SC 645; UP Avas Evam Vikas Parishad v. Friends Co-op. Housing Society Ltd.,
AIR 1996 SC 114; Maharashtra University of Health Sciences v. Sactchikitsa Prasarak Mandal, AIR 2010 SC 1325;
Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 2 SCR 516; Mohini Jain v. State of
Karnataka, AIR 1992 SC 1858; Shaibya Shukla v. State of UP, AIR 1993 All 171; Inderpuri General Store v. Union
of India, AIR 1992 J&K 11; Ammini E.D. v. Union of India, AIR 1995 Ker 252; Parmanand v. Union of India, AIR
1989 SC 2039 (paras. 7, 8); State of Punjab v. Mohinder Singh Chawla, (1997) 2 SCC 83.
52
(2011) EWHC 2849 (Admin)
53
Fauchille, Traite de droit International Public, Vol. 1, Part 3 (1926) 300;
Cavare, 2 Droit International Public Positif, Vol. 2 (1962) 69;
Reuter, Introduction au Droit des Traites (1972) 141-43;
Quadri, “Cours general de droit international public” (1964) 113 Recueil des Cours 335;
McNair, The Law of Treaties, 214-15;
Ian Brownlie, Principles of Public International Law, 515.
54
Sir Ian Sinclair, The Vienna Convention on the Law of Treaties (1969) 207.
55
Ian Brownlie, Principles of Public International Law, 5th Ed. Oxford, 1998.
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Rapporteurs on the Law of Treaties, which proposes that, “A treaty or any of its provisions,
is void if its performance involves an act which is illegal under international law & if it is
declared to be so by the International Court of Justice.”56 Ergo, the performance of
extradition which is violating basic human rights is unarguably illegal under international
law & judicial dicta.
8. Diplomatic Assurances- No Safeguard against Torture
That as per the established facts in the instant case on Para 10, where the reports submitted
by the Scottish Expert Commission on the prison conditions of Niceland, states that there
is a “flagrant violation of extradition assurances by the authorities.” The nature of such
diplomatic assurances, by the requesting state, are such that they are bilateral political
agreements, brokered at the diplomatic level, which are not treaties & have no legal
character in force.57 Further that if these assurances are breached, the sending government
has no way to hold the receiving government legally accountable.

9. The Canadian Supreme Court while segregating the diplomatic assurances relating to
“torture” from “death penalty” observed in Suresh v. Canada58 case, that “death penalty
assurances” relating to the legal processes of prosecution, conviction, and sentencing are
easier to monitor than assurances against torture59, which is illegal, and often conducted
with the collusion of the government or as a result of government impotence at stopping
the forces that commit such abuse. Further, the Court acknowledged that international law
absolutely bans returns to countries where there are substantial grounds for believing the
individual would be in danger of being subjected to torture. Furthermore, in the case of

56
Doc. A/CN. 4/63, 24-03-1953. Namibia Case (South-West Africa), ICJ Rep 1971, 16, that the imperative
character of human rights whose violation by the South African authorities the courts have had denounced.
57
Human Rights Watch in its Report “Empty Promises: Diplomatic Assurances No Safeguard against Torture”
(Human Rights Watch, 2004) highlights the problem of diplomatic assurances being used to circumvent the
principle of non-refoulement. According to Human Rights Watch, the growing weight of evidence and international
expert opinion indicates that diplomatic assurances cannot protect people at risk of torture from such treatment upon
return. Sending countries that rely on such assurances are either engaging in wishful thinking or using the assurances
as a fig leaf to cover their own complicity in torture.
58
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, (docket no. 27790),
January 11, 2002, http://scc.lexum.umontreal.ca/en/2002/2002scc1/2002scc1.html (accessed January 1, 2007), para.
124.

59
The Court has given expansive definition of “torture” which is not merely physical but may even consist of mental
& psychological torture calculated to create fright to make her submit to the demands of the police, Arvinder Singh
Bagga v. State of UP, AIR 1995 SC 117.
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 XIV LC-1 ALL DELHI (NCR) MOOT COURT COMPETITION

Chahal v. United Kingdom60, the European Court of Human Rights ruled that the return
to India of a Sikh activist would violate the UK’s absolute obligation not to return a person
to the risk of torture, despite diplomatic assurances proffered by the Indian government.

10. That the presumption of ill-treatment lies in the reports submitted by the various
agencies, where the jail conditions in the requesting state are pathetic (Para 10) & also
basic amenities like prison system, hospitals & courts are lacking (Para 1). Further it is
underpinned through plethora of pronouncements61 by the Hon’ble Supreme Court of
Niceland where it has condemned police brutality & torture on prisoners, accused & under-
trails, observing that, “We are deeply disturbed by the diabolical recurrence of police
torture resulting in a terrible scare in the minds of common citizens that their life & liberties
are under a new peril when the guardians of the law gore human rights to death.” 62 And
that, how the guidelines laid down by the Court were being ignored & flouted by the prison
administration.63
11. In addition, diplomatic assurances, which are political agreements, lack judicial scrutiny,
which empowers the Parliament, under Art. 253, to make any law for implementing any
treaty, agreement or convention as well as decisions & non-obligatory recommendations
of international organizations & conferences (Entry 13). Ergo, is such cases the fairness &
legal obligations arising out of the same cannot be audited by the guardians of the
fundamental rights i.e. by Judiciary, thereby, paving way for government’s impotency on
monitoring human rights issues which are hypersensitive.

12. Jurisdiction dwells with the Indeshian Court

60
Chahal v. United Kingdom, 23 EHRR 413.
61
Munshi Singh Gautam v. State of MP, (2005) 9 SCC 631; Prithipal Singh v. State of Punjab, (2012) 1 SCC 10
(25); Sheela Barse v. State of Maharashtra, AIR 1983SC 378; Mohan Lal Sharma v. State of UP, (1989) 2 SCC 314;
Rajasthan Kisan Sangathan v. State of Rajasthan, AIR 1989 Raj. 10; T.V. Vetheeswaran v. State of Tamil Nadu,
AIR 1983SC 361; Sunil Batra I, AIR 1978 SC 1675.
62
Raghubir Singh v. State of Haryana, AIR 1980 SC 1087; Custodial torture violates the basic rights of the citizens;
Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, (2003) 7 SCC 749.
63
Kishor Singh v. State of Rajasthan, AIR 1981 SC 625; Rakesh Kaushik v. Supdt. Central Jail, New Delhi, AIR
1981 SC 1767; Rudul Shah v. State of Bihar, AIR 1983 SC 1086, a case where the petitioner was kept in the jail for
14 years after he had been acquitted by the criminal court “a sordid & disturbing state of affairs”.
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That as per the established facts & circumstances where the respondent out of fear of
persecution in Niceland, flee to the requested state in light of justice, ergo this affirmatively
brings the ‘physical presence’ of respondent under the territorial jurisdiction of the Indesh
as long as he remains within it’s territory. Corroboratively, PCIJ stated in the Lotus Case64,
‘a State…may not exercise its power form in the territory of another State.65 Secondly, his
‘constructive presence’ could be drawn through the human rights violations involved,
which is sufficient to exercise the jurisdiction.66

64
France v. Turkey, (The S.S. Lotus Case), 1927 PCIJ, [(Ser.A)]
65
Jurisdiction ‘cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from
international customs or from a convention.’
66
The US Supreme Court first enunciated a ‘minimum contracts’ test for the exercise of the jurisdiction in relation
to in personam jurisdiction in International Shoe Co. v. Washington, (1945) 326 US 310. In Shaffer v. Heitner,
(1977) 433 US 186, the Court held that all assertions of jurisdiction had to meet that test.
Article 14, of UDHR states that “Everyone has the right to seek & enjoy in other countries asylum from
persecution”. Further, that a person seeking asylum from persecution should not be rejected at the frontier; or if
entered the territory, he should not be expelled or compulsorily returned, Art. 3 of UN Declaration on Territorial
Asylum, 1967. Also, Art. 6 states that ‘Every one has the right to recognition everywhere as a person before the
law’, United Nations Universal Declaration of Human Rights, 1948.
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PRAYER

Wherefore in the light of the facts stated, issues raised, authorities cited and arguments advanced,
it is most humbly prayed before this Hon’ble Court that it may be pleased to direct:-

I. That the sanctity of separate corporate personality be respected and respondent be exculpated
of any liability- direct or vicarious.

II. That the extradition of the respondent be denied on the grounds of the political character of
the charges levied against him.

III. That the extradition of the respondent be denied on the grounds on of the inhumane jail
conditions existing in the requesting state which will be a gross human rights
violation.

AND

Pass any other order that it may deem fit in the interest of Justice, Equity and Good
Conscience.

And for this, the appellant as in duty bound shall humbly pray.

SD/-

(Counsel for the Petitioners)

26