2nd amity university madhya pradesh national moot … · 2018-09-08 · 2nd amity university madhya...

2nd AMITY UNIVERSITY MADHYA PRADESH NATIONAL MOOT COURT

COMPETITION, 2018

1 MEMORIAL ON BEHALF OF RESPONDENT

TC- AMCC 05


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Before

THE HON’BLE SUPREME COURT OF INDUS

SLP No._ of 2018

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDUS

MASAB KHAN…………….……………………………………………. PETITIONER

VERSUS

UNION OF INDUS……………………………………………………...RESPONDENT

IN THE MATTER CONCERNING JURISDICTION OF INDUS COURT,

CONTRAVENTION OF VIENNA CONVENTION, RIGHT TO BAIL AND FAIR

TRIAL

MEMORIAL ON BEHALF OF RESPONDENT


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TABLE OF CONTENTS

Index of Authorities………. ..….………………………………………………………......4

Statement of Jurisdiction..………...………….…………………………….……………….8

Statement of Fact………………………………………………………………….………..9

Statement of Issues...….…………………………………………………………..………10

Summary of Pleadings.……………………………………………………………..……..11

Arguments Advance…..…………………………………………………………………..13

[1] That the Special Leave Petition by the Accused is not Maintainable…………………13

[1.1] No exceptional and Special circumstances exist in this case ……………………….13

[1.2] Restriction in the Appellate Jurisdiction of Article 136……………………………..14

[1.3] Alternative remedy was not exhausted in this case………………………………….14

[2] The Court in Indus have the Jurisdiction to try Panjiksistan National Apprehended from

its Territory …………………………………………………………………………..…..15

[2.1] The offences committed by the alleged terrorist come under the ambit of intra

territorial jurisdiction as defined in Section 2 of the Indus Penal Code, 1860 …………..15

[2.2] The offences committed by the alleged terrorist comes under the purview of territorial

principles of International Law …………………………………………………………..17

[2.3] The apprehended Panjiksistan national does not come under the persons who are

exempted from jurisdiction of criminal court …………………………………………. .18

[3] The denial of consular access doesn’t contravene Vienna Convention ……………..19

[3.1] Rights are subject to certain restriction ………………………………………..…..20

[3.2] Kulbhushan Jadhav Case ………………………………………………………… .21

[4] The arrest and detention by Indus Army is legal in nature ……………………….….22


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[4.1] The arrest of the accused is legal in nature….……………………………………….22

[4.2] The detention was for the operational intelligence……………………………...….24

[4.3] The subsequent proceeding didn’t vitiate by the arrest in this case……………...…24

[5] The accused has no right to be released on Bail………………………………….…. 25

[5.1] Computation of the period start from the day of remand and not from the arrest…..25

[5.2] Section 167 of Cr.P.C. will apply to the arrest by police only……………………..26

[5.3] Special enactments will apply in this case….…………………………………...….27

[6] The accused is not entitled to get counsel from Panjiksistan for his defence…..……28

[6.1] Violation of Advocate Act, 1961……………………………………………………28

[6.2] Applicability of Vienna Convention ..……………………………………………...29

[7] No adverse publicity in this case and doesn’t affect the principle of Fair trial……….29

[7.1] Media is working as per the mandate and no adverse publicity by the media in this

case ………………………….…………………………………………………………...30

[7.2] Principle of Fair Trial is not Violated………………………..…………………….30

Prayer…………………………………………………………………………………….32


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INDEX OF AUTHORITIES

LIST OF CASES [INDIAN]

No. NAME OF THE CASE CITATION(s) PAGE

1. A.V. Venkateshwaran v. R.S. Wadhwani AIR 1961 SC 1906 14

2. Anand Singh v. State of Rajasthan 1999 Cri LJ 842

26

3. Asstt. Collector of Central Excise v. Jainson Hosiery AIR 1979 SC 1889 15

4. Bhagan v. State AIR 1955 AII 438 24

5. Bhanu Prasad v. State of Gujarat 1968 Cri LJ 1505: AIR

1968 SC 1323: 1968 SC

1026:1969 (1) SCR 22

25

6. CCE v. Standard Motor Products AIR 1989 SC 1298:

(1989) 2 SCC 2316

15

7. Central Bank of India v. Madhulika Guruprasad

Dahir

(2008) 13 SCC 17 14

8. Chaganti Satyanarayana v. State of A.P. AIR 1986 SC 2130:

(1986) 2 SCC 141

26

9. Dalam Chand Baid v. Union of India 1982 Cri LJ 747 (Del) 27

10. Dev Dass v. State 1996 Cr LJ 1441 25

11. Dorai v. State of Karnataka 1994 Cri LJ 2987: 1994

(3) Crimes 697 (Kant.)

25

12. Elumalai v. State of Tamil Nadu 1983 LW (Crl) 121 26

13. Haripada Dey v. State of West Bengal AIR 1956 SC 757: 1956

SCR 639

14

14. In re Harijai Singh AIR 1997 SC 73 30

15. Indian Express Newspapers (Bombay) (P) Ltd. v.

Union of India

(1985) 1 SCC 641

30

16. Kunhayammed v. State of Kerala AIR 2000 (SC)

2587(2595): 2000 (6)

SCC 359

14

17. Lee Kun Lee v. State of U.P. (2012) 3 SCC 132 16

18. Mahesh v. Delhi (1991) Cr LJ 439 14

19. Mobarak Ali Ahmed v. State of Bombay AIR 1957 SC 857 16


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20. Mohammad Khalil Chisti v. State of Rajasthan 2013 Cr LJ 637 (649)

(SC): (2012) 12 SCALE

254

13

21.. Mulla Singh v. State AIR 1968 AII 132: 1968

Cri LJ 435

24

22. Munnilal v. State 1970 ALJ 762 24

23. N. Suriyakala v. A. Mohandoss (2007) 9 SCC 196: (2007)

3 JT 266

13

24. Narpat Singh v. Jaipur Development Authority (2002) 4 SCC 666:AIR

2002 SC 2036

13

25. Nautam Praksah DGSVC v. K.K. Thakur (2006) 5 SCC 330: AIR

2006 SC 2075

23

26. Printers (Mysore) Ltd. v. CTO (1994) 2 SCC 434 30

27 Pritam singh v. The State AIR 1950 SC 169: 1950

SCR 453

13

28. Rajeev Chaudhary v. State (NCT) of Delhi 2001 Cri LJ 2941: (2001)

5 SCC 34: 2001 SCC

(Cri) 819

25

29. Rajkrishna bose v. Binod Kanugo AIR 1954 SC 202(204)

1954 SCR 913

15

30. Ram Jag v. State of Uttar Pradesh AIR 1974 1974 SC 606:

(1974) 4 SCC 201

14

31. S.K. Nair v. State of Punjab 1984 Cr LJ 1090 26

32. Sadhu Singh v. Pepsu AIR 1954 SC 271: 1954

Cr LJ

14

33. Saleem-ud-Din v. State (1971) ILR 1 DEL 432 17

34. Sambhu Das v. State of Assam (2010) 10 SCC 374:

(2010) 3 SCC (Cri) 1301

13

35. Shivanna v. State 1992 Cr LJ 2287 (2282)

(Kant): ILR 1992 Kar

2610

26

36. State of A.P. v. NTPC Ltd. (2002) 5 SCC 203: AIR

2002 SC 1895

23

37. State of Bihar v. Kameshwar Prasad Singh AIR 2000 SC 2306:

(2000) 9 SCC 94

14

38. State of U.P. v. Anil Singh AIR 1988 SC 1988: 1988

Supp SCC 686

14

39. State of UP v. Pheru Singh AIR 1989 SC 1205: 1989

Supp (1) SCC 288

14

40. State of Uttar Pradesh v. Ballabh Das AIR 1985 SC 1384:

(1985) 3 SCC 703

14


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41. State of Uttar Pradesh v. Ram Swarup AIR 1988 SC 1028: 1988

Supp SCC 262

14

42. State v. Ramchandra AIR 1968 AII 132: 1968

Cri LJ 435

24

43. Zahira Habibullah Sheikh & Anr vs State of

Gujarat

2004 4 SCC 158 30

FOREIGN CASES

1. Congo v. Belgium ICJ Reports, 2002, ¶3,36 18

2. Holmes v. Bangladesh Binani Corporation [1989] 1 AC1112, 1137 18

3. Jadhav (India v. Pakistan), Provisional

Measures

I.C.J. Reports 2017, p. 231 21

4. Re The Parlement Belge (1880) 5 PD 197 19

BOOKS

1. Acharya D.D. Basu, Commentary on Constitution of India, Vol.5, 8th Edn. Lexis

Nexis Butterworth’s Wadhwa, 2009.

2. M.P. Jain, Indian Constitutional Law, Vol.1, 6th Edn., Lexis Nexis, 2010.

3. Malcolm N. Shaw, International Law, Vol.1, 8th Edn., Cambridge University Press,

2017

4. Manoj Kumar Sinha, Handbook on Legal Instruments on International Human

Rights, Vol.1, 1st Edn., Lexis Nexis, 2014

5. P.C. Banerjee, Criminal Trial and Investigation, Vol.2, 5th Edn., Orient Publishing

Company, 2013.

6. P.K. Das, International Law Documents, Vol., 2nd Edn., Universal Law Publishing,

2003.

7. Prabhakar Singh and Benoit Mayer, Critical International Law, Vol.1, 2nd Edn.,

Oxford, 2017.

8. PSA Pillai, Criminal Law, Vol.1, 13th Edn., Lexis Nexis, 2017.

9. R.V. Kelkar, Criminal Procedure, Vol.1, 6th Edn., EBC, 2016.


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10. Ratanlal & Dhirajlal, The Code of Criminal Procedure, Vol.1, 20th Edn., Lexis

Nexis, 2016.

11. V.N. Shukla, Constitution of India, Vol.1, 13th Edn., EBC, 2017.

LEXICONS

1. Black, Henry Campbell, Black’s Law Dictionary, 6th Ed., Centennial Ed. (1891-

1991)

2. P. Ramanatha Aiyar’s, The Law Lexicon, 2nd Edn, Lexis Nexis Butterworth’s

Wadhwa, 2009.

STATUTES

1. The Constitution of India, 1950

2. The Code of Criminal Procedure, 1973

3. Indian Penal Code, 1860

4. Armed forces (Jammu & Kashmir) Special Powers Act, 1990

5. The Unlawful Activities (Prevention) Act, 1967

6. Prevention of Damage to Public Property Act, 1984

7. The Advocate Act, 1961

8. Statute of the International Court of Justice 1946

INTERNATIONAL TREATIES, CONVENTIONS, AGREEMENT

1. Agreement on Consular Access between the Government of the Islamic Republic

of Pakistan and the Government of the Republic of India, 2008

2. International Covenant on Civil and Political Rights, 1966

3. Optional Protocol Concerning the Compulsory Settlement of Disputes, 1963

4. Universal Declaration of Human Rights, 1948

5. Vienna Convention on Consular Relations, 1963


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STATEMENT OF JURISDICTION

The petitioner humbly and respectfully approached this Hon’ble Supreme Court under

article 136 of the Constitution of India, that reads:

Special leave to appeal by the Supreme Court,

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,

grant special leave to appeal from any judgment, decree, determination, sentence or order

in any cause or matter passed or made by any court or tribunal in the territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order

passed or made by any court or tribunal constituted by or under any law relating to the

Armed Forces.


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STATEMENT OF FACTS

1. Indus, officially known as the republic of Indus, is located in south central Asia, Panjiksistan

got separated from Indus in 1947 and since then relations between these two countries have

been strained. In 1965, 1971 and 1999 Panjiksistan attacked Indus and faced humiliating

defeat. After tasting continuous defeat in conventional war, they established launch pads to

strike terror attack in Indus and harbouring and training terrorists in occupied territory of

state of Pammu and Pashmir.

2. On 23 Nov 2015, twelve terrorists, trained by Panjiksistan military and spy agency ISO left

Panjiksistan for trombay via sea, they entered three days later by hijacking a boat owned by

fisherman and killing them enroute and targeted high profile place. 180 people including 20

police officers and 4 commandos killed and 410 severely injured. On 25 Sep 2016 terrorists

trained in Panjiksistan entered military units by donning army uniforms and killed soldiers.

3. The Indus Government could not take these anymore and in right of private defence as

enshrined in Article 51 of the UN Charter decided to destroy the launch pads and terrorist

hide outs and training areas in Panjiksistan and Panjiksistan occupied Pammu and Pashmir.

The surgical strike was carried out on 7 October 2016 in the Panjiksistan occupied Pammu

and Pashmir and destroyed launch pads and hideouts of terrorists and caught one terrorist

alive namely Masab Khan from Panjiksistan occupied Pammu and Pashmir for getting

operational intelligence and also to prove to the world that Panjiksistan was sponsoring

terrorism from the soil under its control.

4. The terrorists were in custody of army for 30 days, investigation also revealed that

apprehended terrorist was the one who had masterminded the terror attack in Indus and he

also made confessional statement to that effect before the magistrate of competent

jurisdiction. After the army handed over to ATS and the accused was in custody of ATS for

70 days, during which the accused applied for bail. Aggrieved by the Surgical strike

Panjiksistan approached ICJ. In this suit accused claimed that the court of Indus has no

jurisdiction, he is entitled for bail as charge sheet not filed within 90 days, and requested

counsel of his choice from Panjiksistan and also mentioned about the Media trial. Accused

filed Special Leave Petition before the Apex Court as the lower courts rejected the accused

contentions.


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STATEMENT OF ISSUES

ISSUE 1- WHETHER THE SPECIAL LEAVE PETITION FILED BY THE ACCUSED IS

MAINTAINABLE?

ISSUE 2- WHETHER THE COURT IN INDUS HAVE THE JURISDICTION TO TRY

PANJIKSISTAN NATIONAL APPREHENDED FROM ITS TERRITORY?

ISSUE 3- WHETHER NOT GIVING CONSULAR ACCESS TO THE ACCUSED WOULD

CONTRAVENE THE VIENNA CONVENTION ON CONSULAR RELATIONS?

ISSUE 4- WHETHER THE ARREST AND DETENTION BY INDUS ARMY WAS ILLEGAL IN

NATURE?

ISSUE 5- WHETHER THE ACCUSED HAD A RIGHT TO BE ENLARGED ON BAIL AS THE

CHARGE-SHEET WAS NOT FILED WITHIN THE STATUTORY PERIOD OF 90 DAYS?

ISSUE 6- WHETHER THE ACCUSED IS ENTITLED TO GET COUNSEL FROM PANJIKSISTAN

FOR HIS DEFENCE?

ISSUE 7- WHETHER THE ADVERSE PUBLICITY IN MEDIA AFFECT THE PRINCIPLE OF FAIR

TRIAL?


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SUMMARY OF PLEADINGS

ISSUE 1- WHETHER THE SPECIAL LEAVE PETITION FILED BY THE ACCUSED IS

MAINTAINABLE?

It is humbly submitted before this Hon’ble court that the special leave petition filed by the

accused is not maintainable as there is no exceptional circumstances or miscarriage of

justice in the given case. Apart from that there are ample of restriction in invoking the

appellate jurisdiction under article 136 of the constitution of India. Furthermore, the

alternative remedy was not exhausted in this case i.e., Article 134 which states that

appellate jurisdiction of Supreme court with regard to criminal matters.

ISSUE 2- WHETHER THE COURT IN INDUS HAVE THE JURISDICTION TO TRY PANJIKSISTAN

NATIONAL APPREHENDED FROM ITS TERRITORY?

The court in Indus have the jurisdiction to try panjiksistan national apprehended from its

territory as the offence was committed within the territorial boundary of Indus as

mentioned in the territorial jurisdiction of the Indian penal code and the International Court

of Justice has no jurisdiction to entertain this case.



In the instant case not providing consular access doesn’t contravene the vienna convention

on the consular relations as the establishment of consular relation take place by mutual

consent and according to the clause 6 of agreement on consular access between the

government of republic of Panjiksistan and the government of republic of Indus.


NATURE?

The arrest in the instant case was as per the power of Indus army mentioned in the Armed

forces (Pammu & Pashmir) Special Powers Act in which the commissioned officers has

the power to arrest any person in the disturbed area. Also we know that parliament itself

declared that the Panjiksistan occupied Pammu & Pashmir is an integral part of Indus this

means that the act is also applicable in that concerning area.


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The accused in the instant case has no right to be enlarged on Bail as section 167(2) of

CrPC applied only to arrest by the police, further the computation of the period of 90 days

start from the time of remand and not from the arrest, that’s why in the instant case the

statutory period of 90 days was not completed and the accused can’t be released on Bail.


FOR HIS DEFENCE?

The accused is entitled to get the counsel of his choice but not from the Panjiksistan as the

provision in the constitution and also in Cr.P.C. doesn’t entitle the accused to have legal

practitioner from the other country. The only thing that require in fair trial is the impartial

judge which is available in the instant case.


TRIAL?

As in the instant case there is no such incident to justify that there is adverse publicity by

the media, as the media has the freedom implicit under fundamental right which cannot be

restricted and the contention of the petitioner that the accused did not expect fair trial in

Indus because of the media cannot be taken into consideration. Also a responsible press is

a handmaiden of effective judicial administration. Media has wide ranging roles and plays

a vital role in shaping the opinion of the society. Thus, media doesn’t affect the principle

of Fair trial.


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ARGUMENT ADVANCED

ISSUE 1- WHETHER THE SPECIAL LEAVE PETITION FILED BY THE

ACCUSED IS MAINTAINABLE?

It is humbly submitted before this Hon’ble court that the Special leave petition by the

accused is not maintainable in this case because the judgment of the lower courts is as per

the judicial standard and no exceptional circumstances or grave injustice exists in this case.

The submission in this is three folded [1.1] No exceptional and special circumstances exist

in this case [1.2] Restriction in the appellate jurisdiction of Article 136 [1.3] Alternative

remedy was not exhausted in this case.

[1.1] No exceptional or special circumstances exist in this Case

In Pritam singh v. The State1, the Supreme Court has emphasized that “this court will not

grant special leave, unless it is shown that exceptional and special circumstances exist, that

substantial and grave injustice has been done and that the case in question presents features

of sufficient gravity to warrant a review of the decision appealed against”.

The exercise of jurisdiction conferred by Art. 136 of the constitution on this court is

discretionary. It doesn’t confer a right to appeal on a party to litigation; it only confers a

discretionary power on this court to be exercised for satisfying the demands of justice. On

the one hand, it is an exceptional power to be exercised sparingly, with caution and care

and to remedy extraordinary situations or situations occasioning gross failure of justice; on

the other hand, it is an overriding power where under the court may generously step in to

impart justice and remedy justice.2

In this case there is no special or exceptional circumstances exist as from the law it is

cleared that the court in Indus have the jurisdiction to try Panjiksistan national apprehended

1 AIR 1950 SC 169: 1950 SCR 453.

2 Narpat Singh v. Jaipur Development Authority, (2002) 4 SCC 666, at 674: AIR 2002 SC 2036. N.

Suriyakala v. A. Mohandoss, (2007) 9 SCC 196: (2007) 3 JT 266; Mohammad Khalil Chisti v. State of

Rajasthan, 2013 Cr LJ 637 (649) (SC): (2012) 12 SCALE 254; Sambhu Das v. State of Assam, (2010) 10

SCC 374: (2010) 3 SCC (Cri) 1301.


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from its territory and in the entire trial there is not any contravention of Vienna convention

on consular relations, furthermore, the arrest was legal in this case and doesn’t vitiate any

proceedings.

[1.2] Restriction in the appellate jurisdiction of Article 136

The constitutional provisions confer a plenary jurisdiction on the court. Nevertheless, the

court has sought to impose on itself some restrictions in exercising this vast appellate

jurisdiction. This has been done with a view to reduce the flow of appeals to itself so that

it is not faced with a huge backlog of cases3. The supreme court, however, does not grant

leave to appeal in criminal matters liberally. It does so only when exceptional and special

circumstances exist, substantial and grave injustice has been done, and the case in question

presents features of sufficient gravity to warrant a review of the decision appealed against,

or there has been departure from legal procedure such as vitiates the whole trial or if the

finding of the fact “were such as were shocking” to the judicial conscience of the court4.

Furthermore, it is not the policy of this court to entertain special leave petitions and grant

leave under article 136 of the constitution save in those cases where some substantial

question of law of general or public importance is involved or there is manifest injustice

resulting from the impugned order or judgment5.

[1.3] Alternative remedy was not exhausted in this case

It is humbly submitted that alternative remedy is a bar unless there exists complete lack of

jurisdiction or authority to take action impugned.6 Ordinarily the supreme court would

3 State of Bihar v. Kameshwar Prasad Singh, AIR 2000 SC 2306: (2000) 9 SCC 94.

4 Sadhu Singh v. Pepsu, AIR 1954 SC 271: 1954 Cr LJ; Haripada Dey v. State of West Bengal , AIR 1956

SC 757: 1956 SCR 639; Ram Jag v. State of Uttar Pradesh, AIR 1974 1974 SC 606: (1974) 4 SCC 201; State

of Uttar Pradesh v. Ballabh Das , AIR 1985 SC 1384: (1985) 3 SCC 703; State of Uttar Pradesh v. Ram

Swarup, AIR 1988 SC 1028: 1988 Supp SCC 262; State of UP v. Pheru Singh, AIR 1989 SC 1205: 1989

Supp (1) SCC 288; Mahesh v. Delhi (1991) Cr LJ 439; State of U.P. v. Anil Singh, AIR 1988 SC 1988: 1988

Supp SCC 686.

5 Kunhayammed v. State of Kerala, AIR 2000 SC 2587(2595): 2000 (6) SCC 359; Central Bank of India v.

Madhulika Guruprasad Dahir, (2008) 13 SCC 17.

6 A.V. Venkateshwaran v. R.S. Wadhwani, AIR 1961 SC 1906.


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refuse to entertain appeal under art.136 from the order of an inferior court where the

litigants has not availed himself of the ordinary remedies available to him at law7. Article

136 for it not being a regular forum of appeal. Article 136 is residuary power of the SC and

are class apart & sui juris8. Where there is alternative statutory remedy the court should not

interfere unless the alternative remedy cannot grant quick relief9. Appellate power vested

in the Supreme court under Art.136 of the constitution is not to be confused with ordinary

appellate power exercised by appellate courts and appellate tribunals under specific

statutes. It is a plenary power ‘exercisable outside the purview of ordinary law’ to meet the

pressing demand of justice. In the instant case the accused can also approach Hon’ble

Supreme court under article 134 which talk about appellate jurisdiction of Supreme Court

with regard to criminal matters.

ISSUE 2- WHETHER THE COURT IN INDUS HAVE THE JURISDICTION TO TRY PANJIKSISTAN

NATIONAL APPREHENDED FROM ITS TERRITORY?

It is humbly submitted before the Hon’ble court that the court of Indus has jurisdiction to

try the Panjiksistan national apprehended from its territory. The court in Indus can exercise

its jurisdiction in trying the alleged terrorist. The submission in this issue is three folded.


territorial jurisdiction as defined in Section 2 of the Indus Penal Code, 1860. [2.2] The

offences committed by the alleged terrorist comes under the purview of territorial

principles of International Law [2.3] The apprehended Panjiksistan national does not come

under the persons who are exempted from jurisdiction of criminal court.


territorial jurisdiction as defined in section 2 of the Indus Penal Code, 1860

The offences committed by the accused Masab Khan come under the purview of intra

territorial jurisdiction of courts in Indus. Every person shall be liable to punishment under

this Code and not otherwise for every act or omission contrary to the provisions thereof, of

7 Rajkrishna bose v. Binod Kanugo, AIR 1954 SC 202(204) 1954 SCR 913.

8 CCE v. Standard Motor Products, AIR 1989 SC 1298: (1989) 2 SCC 2316.

9 Asstt. Collector of Central Excise v. Jainson Hosiery, AIR 1979 SC 1889


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which he shall be guilty within [India]10. This section deals with the intra-territorial

operation of the code and it makes the code universal in its application to every person in

any part of Indus for every act or omission contrary to the provisions in this code. It

prescribes no fixed time within which prosecution should be launched, as it follows the

maxim Nullum tempus Occurit regi11. A foreigner who commits an offence within Indus

is guilty and can be punished as such without any limitation as to his corporeal presence in

Indus at the time12. The offences under which the accused has been charged were

committed in Trombay which is within the territory of Indus and hence it gives the power

to the court in Indus to try the alleged Panjiksistan national. Indus courts have jurisdiction

against foreigners residing in foreign countries but their acts connected with transaction or

part of transaction arising in Indus13. Attack was made on Trombay and these terrorists

targeted high profile places including railway station terminals, premier hotels and

hospitals killing innocent persons14. It is clearly evident from the above facts that the act

was committed in Indus and the accused is Panjiksistan national which makes him a

foreigner and that gives the jurisdiction as his act is connected with acts arising in Indus.

The crucial aspect to be noted here is that the Code makes no distinction between an Indus

citizen and a foreigner, for offences committed in Indus15. Prima facie, the IPC is intended

to deal with all unlawful acts and omissions defined to be offences and committed with

Indus and to provide for the punishment thereof of the person or persons found guilty

therefor16. The above mentioned aspects also apply to the present context as Masab Khan

is a foreigner and no distinction will be made between him and the citizen of Indus and he

will be dealt with IPC and that will empower the courts to try him. The Supreme Court

perceiving that the basis of jurisdiction under Section 2 of the IPC is the locality where the

offence committed and that the corporal presence of the offender in the Indus is immaterial,

10 Indian Penal Code, No. 45 of 1860 §2, (1860).

11 Ratanlal & Dhirajlal, The Indian Penal Code 11(1st ed. 2014).

12 Mobarak Ali Ahmed v. State of Bombay, AIR 1957 SC 857

13 Lee Kun Lee v. State of U.P., (2012) 3 SCC 132.

14Page 2 ¶.4 Moot Proposition.

15 Supra note 12.

16RA Nelson, Indian Penal Code 40 (10th ed. 2008).


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upheld conviction of Mobarak Ali, a Pakistani national, for cheating even though he, while

staying in Karachi, made false representations through letters17. Same circumstance prevail

in the present context also as Masab Khan admitted that he was “mastermind” behind the

attack, who provided training to these terrorists and financial aid to these terrorists18. So he

was not present physically but that will not prevent him from his criminally liability under

the Indus Penal Code. Similarly, if a foreigner, not residing in Indus, starts the train of his

crime out of Indus, but the crime is completed in Indus, he will be liable under the IPC19.

The above case applies to the facts of the present scenario also as the accused was the

mastermind behind the attack and he provided training and funding which implies that he

started the course of his crime out of Indus but the offence was committed within Indus

which tells that Indus will have the jurisdiction to try the accused.

For coming under the purview of intra territorial jurisdiction the offence must be committed

by a person. Section 2 makes all persons, irrespective of their nationality, rank, race,

religion or caste, liable to be punished under the Penal Code20.The plain meaning of the

phrase ‘every person’ is that it comprehends all persons without limitation and irrespective

of nationality, allegiance, rank, status, caste, color or creed21.So it is clear from the above

definitions that Masab Khan will come under the ambit of ‘every person’ as the definitions

does not distinguishes any person for nationality and a person of any nationality can be

tried and punished in the court if the offence is committed within Indus.

[2.2] The offences committed by the alleged terrorist comes under the purview of

territorial principles of International Law

International law permits states to exercise jurisdiction (whether by way of legislation,

judicial activity or enforcement) upon a number of grounds. It was held in the Wood pulp

case22 that ‘the two undisputed bases on which state jurisdiction are founded in

17 Supra note 12.

18 Page 3 ¶.2 Moot Proposition.

19 Saleem-ud-Din v. State, (1971) ILR 1 DEL 432.

20 PSA Pillai, Criminal Law 455 (5th ed. 2011).

21 Supra note 12.

22 Re Wood Pulp Case [1998] 4 CMLR 901 p.148.


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International Law are territoriality and nationality. A country should be able to legislate

with regard to activities within its territory and to prosecute offences committed upon its

soil and it is a logical manifestation of a world order of independent states and is entirely

understandable since authorities of a state are responsible for the conduct of law and the

maintenance of good order within that state. Majority of criminal prosecutions take place

in the territory where the crime has been committed 23. It is also highly convenient since in

practice the witnesses to the crime will be situated in the country24.

Thus, all crimes committed (or alleged to have been committed) within the territorial

jurisdiction of a state may come before the municipal courts and the accused if convicted

may be sentenced. This is so even where the offenders are foreign citizens25.The above

ratio of the case applies to the present scenario also as the accused is a Panjiksistan national

which makes him a foreigner and the crime that is committed by the accused has been

committed within the territory of Indus so he will come under the jurisdiction of courts in

Indus.

[2.3] The apprehended Panjiksistan national does not come under the persons who

are exempted from jurisdiction of criminal court

Though section 2 of IPC provides that all persons, irrespective of their nationality, rank,

race, religion or caste, liable to be punished under the Penal Code, there are some persons

who are kept outside the jurisdiction of criminal courts. Such exemptions are premised on

constitutional or statutory provisions or some well-established and practiced norms of

public international law. A mention of these categories, here below, will suffice this

purpose26.

23Malcolm N. Shaw, INTERNATIONAL LAW, 653-654 (6th ed. 2008).

24 Congo v. Belgium, ICJ Reports, 2002, ¶3,36

25 Holmes v. Bangladesh Binani Corporation [1989] 1 AC 1112, 1137.

26 Supra note 20.


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(I) No criminal proceedings whatsoever shall be instituted or continued against the

President, or the Governor of a State, in any court during his term of office27.So the accused

Masab Khan does not falls under this category as he is not the president of the country.

(II) In accordance with well-recognized principles of international law, foreign sovereigns

are exempt from criminal proceedings in Indus, the principle being that the exercise of such

jurisdiction would be incompatible with the real dignity28. The accused in the present case

is not a foreign sovereign and hence he can’t be categorized as an exception.

(III) This immunity is also enjoyed by the ambassadors and diplomats of foreign countries

who have official status in Indus29. The alleged Panjiksistan terrorist is not a diplomat or

an ambassador which exempts him from this list.

(iv) There is a partial exception as a result of international courtesy, in the case of a ship of

war on the high seas, the officers and crew of which are exempt from the local law in all

that concerns the discipline and internal government of the ship, and on boards where

neither civil nor criminal process can be executed30. The present scenario of the case is not

of the ship of war and is not related with men of war and hence the accused can’t come

under this category also.

(v) When armies of one State are by consent on the soil of a foreign State they are exempted

from the jurisdiction of the State on whose soil they are31.Here in the present context the

accused is not of army of a state, he is just a foreigner who is a Panjiksistan national and

hence he will be exempted from this category.



It is humbly submitted before the court that the denial of consular access to the accused

person would not contravene the Vienna Convention on Consular Relations 1963 as Article

27 INDIA CONST. art. 361, cl. 2.

28 Re The Parlement Belge (1880) 5 PD 197

29 Supra note 20.

30James Fitz James Stephen, History of the Criminal Law of England 46, (1883).

31 Ratanlal & Dhirajlal, The Indian Penal Code 13 (1st ed. 2014).


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36(1) of the Vienna Convention on Consular Relations explains upon the rights that are

given to the national of the sending state who is in prison for getting consular access.

Consular officers shall have the right to visit a national of the sending State who is in

prison, custody or detention, to converse and correspond with him and to arrange for his

legal representation. They shall also have the right to visit any national of the sending State

who is in prison, custody or detention in their district in pursuance of a judgment32. The

nationals have the right to consular access but there are subjected to certain restrictions.

The rights referred to in paragraph 1 of this Article shall be exercised in conformity with

the laws and regulations of the receiving State33. The submission in this is two folded [3.1]

Rights are subject to certain restriction [3.2] Kulbhushan Jadhav Case.

[3.1] Rights are subject to certain restriction

So the rights that are referred in article 36(1) are subjected to the confirmation of the laws

and regulations of the receiving state and the above provision clearly implies that the denial

of consular access necessarily does not contravene the Vienna convention of consular

access as these rights are subjected to certain restrictions. States between which consular

relations would establish require a certain procedure. The establishment of consular

relations between States takes place by mutual consent34. For establishment of the consular

relations between states to occur, an agreement on consular access between the

Government of Islamic Republic of Panjiksistan and the Government of Republic of Indus

has been made on 21 May 2008. In case of arrest, detention or sentence made on political

or security grounds each side may examine the case on its merits35. The above clause of

the agreement clearly applies to the present case as the arrest and detention of the alleged

Panjiksistan national was arrested on the security grounds by the Indus army and his

detention was made on security grounds. Clause 6 of the agreement gives the clear

discretion to both the nations who have signed the agreement to examine and decide the

32 Vienna Convention on Consular Relations art. 36(1)(c), April 22, 1963, 500 U.N.T.S.93.

33 Vienna Convention on Consular Relations art. 36(2), April 22, 1963, 500 U.N.T.S.93.

34 Vienna Convention on Consular Relations art. 2(1) April 22, 1963, 500 U.N.T.S.93.

35 The Agreement on consular access between the Government of the Islamic Republic of Pakistan and the

Government of the Republic of India. Islamabad, 21 May 2008, 54471.


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case on its own merits. It implies that not giving of the consular access to the accused would

not contravene the Vienna Convention on Consular Relations as the consular access is

denied as per the agreement done between the two countries. The provisions of the present

Convention shall not affect other international agreements in force as between States

parties to them36.So the rights given in the Article 36 of the convention shall not affect the

agreement on consular access made by the government of Islamic Republic of Panjiksistan

and the Government of Republic of Indus. Nothing in the present Convention shall preclude

States from concluding international agreements confirming or supplementing or

extending or amplifying the provisions thereof37.

[3.2] Kulbhushan Jadhav Case

In the Kulbhushan Jadhav Case38 Panjiksistan avers that the facts alleged in the Application

fall within the scope of the 2008 Agreement, which “limit[s] and qualif[ies] or

supplement[s]” the Vienna Convention. It refers to Article 73(2) and it considers that the

2008 Agreement “amplifies or supplements [the Parties’] understanding and the operation

of the Convention”. In this regard, Panjiksistan calls attention to subparagraph (vi) of the

2008 Agreement, which provides that “in case of arrest, detention or sentence made on

political or security grounds, each side may examine the case on its merits”39. Panjiksistan

argues that this provision applies to Mr. Jadhav and that the Court therefore lacks prima

facie jurisdiction under Article I of the Optional Protocol40. The contention made by

Pakistan in the Kulbhushan Jadhav apply to the present context as the agreement made by

Indus and Pakistan clearly supplements and amplifies the Vienna Convention of Consular

Relations and hence the court in Indus can try and examine the accused on merits and it is

for the court of Indus to decide that whether consular access should be given to the accused

or not. Disputes arising out of the interpretation or application of the Convention shall lie

36 Vienna Convention on Consular Relations art.73(1), April 22, 1963, 500 U.N.T.S.93.

37 Vienna Convention on Consular Relations, art.73(2), April 22, 1963, 500 U.N.T.S.93.

38 Jadhav (Ind. v. Pak.), Provisional Measures, 2017, I.C.J. Reports, ¶25 (May18).

39 Supra note 35.

40 Supra note 38.


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within the compulsory jurisdiction of the International Court of Justice41.So the denial of

the consular access would not contravene the Vienna Convention on Consular Relations as

the case can be determined on merit and hence the compulsory prima facie jurisdiction of

the International Court of Justice would not be triggered.


NATURE?

In the instant case the arrest and detention of the accused is as per the procedure and doesn’t

vitiate subsequent proceedings. The submission in this three folded. [4.1] The arrest of the

accused is legal in nature [4.2] The detention was for the operational intelligence [4.3] The

subsequent proceeding didn’t vitiate by the arrest in this case.

[4.1] The arrest of the accused is legal in Nature

The entire procedure adopted by the state of Indus to destroy the launch pads, the hideout

of terrorist was justified under article 51 of UN Charter which states the right to private

defence when an armed attack occurs against a Member of united nation, apart from that

the arrest was also justified as per the law in Indus.

One Colonel, five Majors, two Captains, one Subedar, two Naib Subedars, three Havildars,

one Lance Naik and four Paratroppers of the 4th and 9th Battalions of the Para Regiment

took part in surgical strike. In surgical strike, army was successful in destroying terrorist

hide outs and launch pads and caught one terrorist alive namely Masab Khan from

Panjiksistan occupied Pammu and Pashmir for getting operational intelligence and also to

prove to the world that Panjiksistan was sponsoring terrorism from the soil under its

control42.

The arrest in this case is made under the provision of Armed Forces (Pammu & Pashmir)

Special Powers Act43 of section 4(c) that provide special powers to armed forces to arrest,

without warrant, any person who has committed a cognizable offence or against whom a

41 Optional Protocol concerning the Compulsory Settlement of Disputes art.1, April 24,1963, 596 UNTS 487.

42 Page 3 ¶.2 Moot Proposition.

43 1990 No. 21 of 1990.


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reasonable suspicion exists that he has committed or is about to commit a cognizable

offence. There are two requirements to further justify this. Firstly, it is done by any

commissioned officer, warrant officer, non-commissioned officer or any other person of

equivalent rank in the armed forces as from the facts, we know that during the arrest there

are one Colonel, five Majors and two Captain and they all belongs to the commissioned

officer.

Secondly, it must be in the disturbed areas as define in section 2(b) of the above mentioned

act, one of the most disturbed areas is Poonch district in the Pammu and pashmir which

has a few percentage of parts in the Panjiksistan occupied Pammu and Pashmir which is

also an integral part of Indus, as we know that both houses of the Indus Parliament

unanimously adopted a resolution on February 22, 1994, emphasizing that Pammu and

Pashmir was an integral part of Indus, and that Panjiksistan must vacate parts of the State

under its occupation. Apart from that the applicability of the Armed Forces (Pammu &

Pashmir) Special Powers Act extends to the whole of the State of Pammu and Pashmir.

Furthermore, in this case the doctrine of territorial nexus will also be applied which means

that a state law is not invalid as long as there exists a sufficient nexus between or connection

between the state and the subject matter of the law. In other words, although the object to

which the law applies may not physically be located within the territorial limits of the state

yet the state law will be valid if there exists a connection or nexus between the state and

that object44. The most important consideration for invoking the doctrine of nexus is that

the connection between the state and the subject-matter of the law must be real and not

illusory45. In this the case the objective of the law is to maintain internal peace and security

in the disturbed areas so the law will also apply to affected area to achieve its object of

internal peace and there is a direct nexus between both of them.

[4.1.1] The arrest was bonafide in Nature

They caught one terrorist alive namely Masab Khan from Panjiksistan occupied Pammu

and Pashmir for getting operational intelligence and also to prove to the world that

44 Nautam Praksah DGSVC v. K.K. Thakur, (2006) 5 SCC 330: AIR 2006 SC 2075.

45 State of A.P. v. NTPC Ltd., (2002) 5 SCC 203: AIR 2002 SC 1895.


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Panjiksistan was sponsoring terrorism from the soil under its control46. From the fact it is

clear that the arrest was done only for the operational intelligence and also to prove to the

world the Panjiksistan who always deny of the allegations of state sponsored terrorism is

doing the same. Apart from that the armed officers are protected in respect of anything

done or purported to be done in exercise of the powers conferred by this Act as mention in

section 7 of the Armed forces (Pammu & Pashmir) Special Powers Act.

[4.2] The detention was for the operational intelligence

Operational intelligence is the intelligence that is required for planning and conducting

campaign and major operation to accomplish strategic objectives within theaters or

operational areas. From the fact it is clear that there are two major attack done by the

terrorists in first they killed more than 180 people and 410 injured and in second they

entered military units and killed soldiers. This matter is of grave concern as we know there

are lots of terrorist launch pads and hideouts in Panjiksistan occupied pammu and pashmir

and they are actively working and trying to enter in our country, the detention was only for

the operational intelligence, so that the army of Indus can find an approach to deal with

these terrorist in near future as there might be chance that they are planning for another

attack on Indus, so the army was just gathering some vital information to maintain the

internal peace and security. Furthermore, section 6 of Armed forces (Pammu & Pashmir)

special powers act give power to arrest and the arrested person must need to handover to

the police station with least possible delay, as the least possible delay must interpreted as

per the facts and circumstances of each case.

[4.3] The subsequent proceeding didn’t vitiate by the arrest in this case

Arrest illegal doesn’t vitiate the trial, if an arrest is not justified under the law this by itself

cannot vitiate the trial47. No doubt if arrest is not justified in law at the time of the arrest

nothing untoward happens and the person arrested is brought to the custody of the court

46 Page 3 ¶.2 Moot Proposition

47 Supra 12.


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the trial of the accused will not vitiate on this ground48. Even in this case the entire

proceeding is not vitiated even if the arrest is not justified. That’s why the contention of

the accused that the arrest in this case is vitiated subsequent proceeding has no values in

the eyes of law.

[4.3.1] The judicial confession is also admissible in this case

In this case the confession by the accused is voluntarily before the magistrate of the

competent jurisdiction and as per the procedure established in Indus mentioned in section

164 of Code of Criminal Procedure and admissible in the court of law. Section 164 is a

protective measure, as it itself contains warning to the accused by the magistrate before

making any confessional statement. The provision of section 164 of Cr.P.C. do not violate

the provisions of the constitution49. Apart from that Even if the investigation becomes

illegal as alleged by the prosecution, the statement recorded during investigation is not

illegal50 and hence admissible in the court.



It is humbly submitted before this Hon’ble court that the accused doesn’t have any right to

bail as the statutory period of 90 days as mention in the code of criminal procedure is not

completed. The submission in this is three folded [5.1] Computation of the period start

from the day of remand and not from the arrest [5.2] Section 167 of Cr.P.C. will apply to

the arrest by police only [5.3] Special enactments will apply in this case.

[5.1] Computation of the period start from the day of remand and not from the arrest

The supreme court held, that the period of 90 days or 60 days prescribed in sub-clauses (I)

and (II) of proviso (a) of S. 167(2) should be computed from the date of remand of the

accused and not from the date of his arrest51. The period of 90 days mentioned in the

48 Bhagan v. State, AIR 1955 Pepsu 33; State v. Ramchandra, AIR 1955 AII 438; Mulla Singh v. State, AIR

1968 AII 132: 1968 Cri LJ 435; Munnilal v. State, 1970 ALJ 762

49 Dev Dass v. State, 1996 Cr LJ 1441.

50 Bhanu Prasad v. State of Gujarat, 1968 Cri LJ 1505: AIR 1968 SC 1323: 1968 SC 1026:1969 (1) SCR 22.

51 Rajeev Chaudhary v. State (NCT) of Delhi, 2001 Cri LJ 2941: (2001) 5 SCC 34: 2001 SCC (Cri) 819


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proviso has to be computed from the time when the magistrate authorizes the detention for

the first time, i.e. from the date of the first remand of the accused to custody52.

[5.1.1] The Air Force Authority Case

From the combined reading of the provisions of the code, it is manifest that section 167

envisages arrest and detention of any person in police custody, preceding his production

before a judicial magistrate. Besides proviso (a) to section 167 of the code speaks of the

detention of an accused person by the authority of a magistrate. For the foregoing reasons

period of custody under the air force authority is not included in “total period of 90 days”.53

The total period of 90 days under clause (I) has to be calculated only from the date of

remand and not from the date of arrest.54

The accused Masab Khan was initially in the custody of army for 30 days and then he was

presented to the magistrate of the competent jurisdiction as per the procedure for

confessional statement. Furthermore, the accused was in custody of ATS only for 70 days

which means that only 70 days is completed from the stipulated statutory period of 90 days,

as we know that army cannot file a charge-sheet as per the law in Indus, so, as per 167(2)

the accused has no right to be enlarged on bail.

Furthermore, Where the charge-sheet has been filed within the stipulated period, the bail

application under 167 (2) becomes incompetent55.

[5.2] Section 167 of Cr.P.C. will apply to the arrest by police only

In the landmark case of, Elumalai v. State of Tamil Nadu56, the court stated that section

167(2) of the code would apply to arrests made under S. 41(1) and in exceptional

circumstances to arrests made under S.151(1).

52 Dorai v. State of Karnataka, 1994 Cri LJ 2987: 1994 (3) Crimes 697 (Kant.)

53 S.K. Nair v. State of Punjab, 1984 Cr LJ 1090

54 Shivanna v. State, 1992 Cr LJ 2287 (2282) (Kant): ILR 1992 Kar 2610; Chaganti Satyanarayana v. State

of A.P., AIR 1986 SC 2130: (1986) 2 SCC 141.

55 Anand Singh v. State of Rajasthan, 1999 Cri LJ 842

56 1983 LW (Crl) 121


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As we know that section 41(1) of the code clearly states about the grounds when police

arrests and section 151(1) of the code also empower the police to arrest. By the above

statement it can be concluded that arrest in this given case doesn’t come under the purview

of section 167(2) of Code of Criminal Procedure.

[5.3] Special enactments laws will apply in this case

Section 167 applies only to investigation by the police under chapter XI and doesn’t apply

to proceedings under special enactments. The power to remand under section 167, CrPC is

available only in the case of investigation by the police under chapter XI of the code57.

The reason is that it is very likely that by following such illegal practices, in a given grave

and serious case where the charge-sheet gets belated and as a result of which the accused,

sometimes even the hard core accused, may get benefit of default bail and get released even

if that was filed late by few day only.58

The accused was charged for various offences under Indus Penal Code, 1860, Arms Act,

1959, Unlawful Activities (Prevention) Act, 1967, Passport (Entry into Indus) Act, 1920,

Prevention of Damage to Public Property Act, 1984 and Railways Act, 198959.

[5.3.1] Application of certain provisions of the Code Unlawful activities (Prevention)

Act and Prevention of Damage to Public Property Act, 1984

“Provided further that if it is not possible to complete the investigation within the said

period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor

indicating the progress of the investigation and the specific reasons for the detention of the

accused beyond the said period of ninety days, extend the said period up to one hundred

and eighty days60.

As the accused Masab khan was charged under unlawful activities (Prevention) act, 1967

so, the special enactment will prevail in this case which enable the option of extension of

57 Dalam Chand Baid v. Union of India 1982 Cri LJ 747 (Del).

58 Sardarsingh Nagsingh Rajput v. State of Gujarat, 1993 Cri LJ 3473: 1993 Cr LR (Mah and Guj) 328 (Guj)

59 Page 4 ¶.3 Moot Proposition

60 The Unlawful Activities (Prevention) Act, No.31 of 1972, § 43D(b) (1967).


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detention beyond the statutory period of 90 days and it can be extended upto 180 days, by

which in the present case it is implied that the accused doesn’t have to be enlarged on Bail.

Furthermore, in the case of Prevention of Damage to Public Property Act, 1984 there is a

special provision regarding bail which will also apply in this case as mentioned in the

section 5 of the act.


FOR HIS DEFENCE?

It is humbly and respectfully contended before this Hon’ble court that the accused doesn’t

have any right to be defended by counsel of his choice that is counsel from Panjiksistan.

The contention in this is two folded [6.1] Violation of Advocate Act, 1961 [6.2]

Applicability of Vienna Convention.

[6.1] Violation of Advocate Act, 1961

As per the preamble of the advocate Act, 1961, it is an act relating to legal practitioners

and to provide for the constitution of the Bar Councils and an All-Indus Bar. As the accused

in the instant case requested a counsel from Panjiksistan but this cannot be done as

providing him the counsel from Panjiksistan will violate the Indus Provision of Advocate

act, 1961.

As the request was done by referring Article 22 which states that the person has the right

to defended by a legal practitioner of his choice. As according to the Advocate Act, the

word Legal Practitioner means an advocate [or vakil] or any High Court, a pleader, mukhtar

or revenue agent61 and Advocate means an advocate entered in any roll under the

provisions of this Act62, Furthermore, “roll” means a roll of advocates prepared and

maintained under this Act63. The qualifications for enrolment as an advocate amongst other

things, are that the person at the time of enrolment should be a qualified graduate in law

61 The Advocate Act, No. 25 of 1961, § 2(I) (1961).

62 The Advocate Act, No. 25 of 1961, § 2(a) (1961).

63 The Advocate Act, No. 25 0f 1961, § 2(k) (1961).


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from a university recognized by the Bar Council of Indus64. Under the above mentioned

act there is a list of advocates who are allowed to practice and apart from that no other

person is allowed. As the preamble clearly states that amend and consolidate the law

relating to legal practitioners and apart from that no other laws prevail. This means that

providing any Panjiksistan counsel will violate the provision. Furthermore, nowhere it is

mentioned in the article 22 that a foreign counsel can come under this as it is only mention

legal practitioner of his choice. So, in the instant case accused request of Panjiksistan

Counsel will not be taken into consideration.

[6.2] Applicability of Vienna Convention

The article 36 of Vienna convention did not apply on terrorists which harm the victim

country in large way and the terrorist act which harm the security of the victim country. So

here on Indus case, rebutting on this issue that the accused should provide the counsel of

Panjiksistan will no more be entertained as it was not even violating Vienna convention by

not giving consular access to Masab khan as such access and counsel would not be

available to an individual who is arrest for harming the security of country and terrorist

attack after huge master plan. As Vienna convention on consular relations applied only to

legitimate visitors and did not cover clandestine operations and not for the accused of the

case in which arrest or detention or sentence made on political or security ground65.

As if we talk about Kulbhushan Jadhav case then in that case Panjiksistan has referred to

the bilateral consular access agreement of 2008, which says that in case of arrest, detention,

or sentence made on political or security grounds, each side may examine the case on the

merits66. The agreement was signed in Islamabad by former High Commissioner of

Panjiksistan to India Shahid Malik and his India counterpart, Satyabrata Pal, on May 21,

2008. Therefore, in Masab Khan case also the accused can’t claim for counsel form

Panjiksistan.

64 The Advocate Act, No. 25 of 1961, § 7(1) (1961).

65 Agreement on consular access between the Government of the Islamic Republic of Pakistan and the

Government of the Republic of India. Islamabad, 21 May 2008, 54471.

66 Jadhav (Ind. v. Pak.), Provisional Measures, 2017, I.C.J. Reports, ¶25 (May18).


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Article 22(1) of the Constitution of India, empowers a person in detention to consult or

choose a legal practitioner of his choice but it is nowhere mention that the above provision

allows the person to choose the counsel of other nation. The expression “of his choice”

does not mean the accused can pick and choose a lawyer; it only suggests that the lawyer

representing the accused must be acceptable to him or her.


TRIAL?

It is humbly submitted before the Hon’ble court that in the instant case there is no adverse

publicity by the media as the media is working under his power and doesn’t affect the

principle of fair trial. The submission in this is two folded [7.1] Media is working as per

the mandate and no adverse publicity by the media in this case [7.2] Principle of Fair Trial

is not Violated.

[7.1] Media is working as per the mandate and no adverse publicity by the media in

this case.

In Printers (Mysore) Ltd. v. CTO67, the Supreme Court has reiterated that though freedom

of the press is not expressly guaranteed as a fundamental right, it is implicit in the freedom

of speech and expression. Freedom of the press has always been a cherished right in all

democratic countries and the press has rightly been described as the fourth chamber of

democracy. The freedom of press is regarded as “the mother of all liberties in a democratic

society”68. A responsible press is a handmaiden of effective judicial administration. Media

has wide ranging roles and plays a vital role in shaping the opinion of the society.

The Courts have time and again emphasized that the media and press should not be

unnecessarily restricted in their speech as the same may amount to curtailment of

expression of the ideas and free discussion in the public on the basis of which the

democratic country functions. The Courts should thus refrain from making any prior

restraints on the publications in order to curtail such freedom. It therefore received a

67 (1994) 2 SCC 434

68 In re Harijai Singh, AIR 1997 SC 73


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generous support from all those who believe in the free flow of the information and

participation of the people in the administration; it is the primary duty of all national courts

to uphold this freedom and invalidate all laws or administrative actions which interfere

with this freedom, are contrary to the constitutional mandate.69 As in the instant case there

is no such incident to justify that there is adverse publicity by the media, as the media has

the freedom implicit under fundamental right which cannot be restricted and the contention

of the petitioner that the accused did not expect fair trial in Indus because of the media

cannot be taken into consideration.

[7.2] Principle of Fair Trial is not Violated

There are various facets to the right to a fair trial. The Hon’ble Supreme Court in the case

of Zahira Habibullah Sheikh & Anr vs State of Gujarat70 has held that, “the principle of

fair trial now informs and energizes many areas of the law. It is reflected in numerous rules

and practices of fair trial obviously would mean a trial before an impartial Judge, a fair

prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or

prejudice for or against the accused, the witnesses, or the cause which is being tried is

eliminated.” The concept of fair trial entails familiar triangulation of interests of the

accused, the victim and the society and it is the community that acts through the State and

prosecuting agencies. Most of these safeguards to ensure a fair trial are contained under the

Code of Criminal Procedure, 1973 which contains and defines the procedure which has to

be followed in criminal cases. But in this case no such provision is violated as the trial is

fair as the contention of the accused that he didn’t expect fair trial is vague in nature.

Also, in this case the accused confessed before the magistrate of competent jurisdiction

that he was the mastermind the terrorist attack in Indus on 26 November 2015. So, in this

case there cannot be any media trial as the accused had already accepted the guilt.

69 Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641

70 2004 4 SCC 158


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PRAYER

Wherefore in the lights of the issues raised, arguments advanced and authorities cited, it is

humbly prayed that this Honorable Court may be pleased to adjudge and declare that:

I. The special leave petition filed by the accused is not maintainable.

II. The court in Indus have the jurisdiction to try Panjiksistan national apprehended

from its territory.

III. Indus has not contravened vienna convention on consular relations.

IV. The nature of arrest and detention by Indus army is legal in nature.

V. The accused has no right to be enlarged on Bail.

VI. The accused is not entitled to legal practitioner from Panjiksistan.

VII. The media is not affecting the principle of fair trial by adverse publicity.

AND/OR

Pass any other writ/order/direction which the court may deem fit in the interest of equity,

justice, expediency and good conscience in favour of the Respondent. All of which is

most respectfully affirmed and submitted.

Sd /-

COUNSELS FOR THE RESPONDENT