Crpc Memo 1 (Repaired)

7/30/2019 Crpc Memo 1 (Repaired)

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ITM SCHOOL OF LAW - MOOT COURT EXERCISE

IN THE HON’BLEHIGH COURT BOMBAY, MAHARASHTRA

IN THE MATTER OF

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

Vs

STATE OF MAHARASHTRA……………........................................................RESPONDENT

ON SUBMISSION TO THE HON’BLE COURT

MEMORIAL FILED ON BEHALF OF THE PETITIONER

MOST RESPECTFULLY SUBMITTED BY:

ABHINAV TREHAN

11LLB003

COUNSEL FOR THE RESPONDENT



COURT ROOM EXCERCISE

WRITTEN SUBMISSION ON BEHALF OF RESPONDENT

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TABLE OF CONTENTS

1. INDEX OF AUTHORITIES.......................................................................................3

A. CASES REFERRED.......................................................................................3

B. STATUTES REFERRED...............................................................................3

C. WEBSITE........................................................................................................3

2. LIST OF ABBREVIATIONS......................................................................................4

3. STATEMENT OF JURISDICTION..........................................................................5

4. SUMMARY OF FACTS..............................................................................................6

5. ISSUED RAISED.........................................................................................................7

6. SUMMARY OF ARGUEMENTS..............................................................................8

7. ARGUEMENTS ADVANCED...................................................................................9

8. PRAYER.....................................................................................................................12





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INDEX OF AUTHORITIES

CASES REFERRED

STATUTES REFERRED

1. The Code Of Criminal Procedure (Amendment) Act, 2010

2. The Indian Penal Code, 1860

3. The narcotic drugs and psychotropic substance Act 1985

WEBSITES

1. www.indiankanoon.org

2. www.manupatra.com

http://indiankanoon.org/doc/327628/

http://indiankanoon.org/doc/327628/





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LIST OF ABBREVIATIONS

AIR All India Reporter

Anr. Another

Art. Article

Hon’ble Honourable

No. Number

Ors. Others

Sec. Section

SC Supreme Court

u/s Under Section

v. Versus





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STATEMENT OF JURISDICTION

The Appellant humbly approaches the Honourable High Court of Bombay under under

Section 167(2) of Criminal Procedure Code as well as on the merits of the case.





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SUMMARY OF FACTS

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

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

Highway.

2. The name of one of the persons was given as Hamja and the description of the person

including the clothes he was wearing, was given.

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

customers.

4. The Pursuant to the said information, two panchas were called and a trap came to be

arranged.

5. The applicant came to be apprehended and he was found in possession of 42 gms. of

'diecetylmorphine' i.e. heroin.

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

12th June, 2003.

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

Criminal Procedure Code and application for bail under Section 167(2) of CriminalProcedure Code came to be wrongly rejected by the learned Sessions Judge.

8. The charge sheet was filed on 11th August.

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

167(2) of Criminal Procedure Code came to be rejected by the Special Court by order dated

8th October, 2003.





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ISSUES RAISED

1. Whether the Accused can be granted bail under Section 167(2) of Code of

Criminal Procedure Code where an appli cation is purely made on mer it of the

case?





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SUMMARY OF ARGUMENTS

1. Whether the Accused can be granted bail under Section 167(2) of Code of Cr iminal

Procedure Code where an appli cation is purely made on meri t of the case?

That It is presented before this Hon’ble Court that the accused cannot be granted bail

under section 167(2) when an application for bail is applied is on purely on merit.





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ARGUMENTS ADVANCED

Whether the Accused can be granted bail under Section 167(2) of Code of Cr iminal

Procedure Code where an appli cation i s purely made on mer it of the case ?

It is presented before this Hon’ble Court that the accused cannot be granted bail under

section 167(2) when an application for bail is applied is on purely on merit.

In the present case, the applicant has tried to enforce his right only on 18th

September, 2003 when the application for bail under Section 167(2) of Criminal

Procedure Code came to be filed by him. The earlier application preferred by him on

6th August, 2003 cannot be said to be an application made to enforce his right under

Section 167(2) Criminal Procedure Code. Hence, even if the said application was

pending on 11th August, 2003 when the charge sheet came to be filed, it would not

amount to an application being pending under Section 167(2) of Criminal Procedure

Code. The applicant cannot make any use of the application which was filed by him

on 6-8-2003 before the trial Court by contending that the application for bail was

pending at the time when the charge sheet was not filed.

It is clear that the indefeasible right accrued to an accused is enforceable only

prior to the filing of the charge sheet and does not survive for enforcement on

the charge sheet being filed. Once the charge sheet has been filed, the question

of bail has to be considered and decided only with reference to the merits of

the case under the provisions relating to grant of bail after filing of the charge

sheet. Thus, it is clear that there is no question of enforcement of any right

once the charge sheet is filed as the said right is extinguished the moment the

charge sheet is filed.

In the present case, the charge sheet was filed much earlier i.e. on 11th August, 2003

and thereafter on 18th September, 2003 the applicant for the first time tried to enforce

his right for bail under Section 167(2) of Criminal Procedure Code, however, on 11th

August, 2003 the right of the accused was already extinguished. It is clear that the

right accrues in favour of the accused for being released on bail under Section 167(2)

of Criminal Procedure Code and the accused is entitled to be released on bail if he is

prepared to and furnishes the bail as directed by the Court. However, an application





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has to be filed for bail by the accused enforcing his right alleged to have been accrued

in his favour on account of default on the part of investigating agency in filing the

charge sheet within the stipulated period. The said application has to be preferred

before the filing of the charge sheet. After filing of charge sheet the right is

extinguished.

In the present case, the applicant has tried to enforce his right only on 18th

September, 2003 when the application for bail under Section 167(2) of Criminal

Procedure Code came to be filed by him. The earlier application preferred by him on

6th August, 2003 cannot be said to be an application made to enforce his right under

Section 167(2) Criminal Procedure Code. Hence, even if the said application was

pending on 11th August, 2003 when the charge sheet came to be filed, it would not

amount to an application being pending under Section 167(2) of Criminal Procedure

Code. The applicant cannot make any use of the application which was filed by him

on 6-8-2003 before the trial Court by contending that the application for bail was

pending at the time when the charge sheet was not filed and hence, he ought to be

released on bail on that ground.

The further investigation is not precluded in respect of an offence after the report or

challan is sent to the Court. On the basis of material which was there before the Court

on 11th August, 2003, it was clear that the applicant was involved in a case under the

N.D.P.S. Act. The charge sheet which was filed before the Court, also revealed that

the sample of muddemal involved in the present case was sent to the C. A. and the

report in relation thereto was awaited. Thus, there is no merit in this contention. No

good ground is made to release the applicant on bail.





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PRAYER

Wherefore in the light of the facts presented, issues raised, arguments advanced, reasons

given and authorities cited, the counsel for the Petitioner humbly pray before this Hon’ble

Court that may be pleased to:

The accused should not be granted bail under S.167 (2) of code of cr iminal

procedure.

OR

Pass any other order that the Ho n’ble Court may deem f it and proper.

Place: Maharashtra

All of which is most respectfully submitted

Counsel for Respondent

Crpc Memo 1 (Repaired)

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