BEFORE THE

LEARNED METROPOLITAN MAGISTRATE

OF MUMBAI


COMPLAINT NO. __ /2013
[FILED UNDER SECTION 26 R/W SECTION 190 OF SCHEDULE I OF THE CODE OF
CRIMINAL PROCEDURE, 1973]



STATE OF MAHARASHTRA................................................................................. PROSECUTION
Versus
RANJIT KAPOOR ...............................................................................DEFENSE


MEMORIAL ON BEHALF OF DEFENDANT
CODE: 1041

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T TA AB BL LE E O OF F C CO ON NT TE EN NT TS S
Index Of Authorities ................................................................................................................ iii
Statement Of Facts ..................................................................................................................... v
Statement Of Jurisdiction .......................................................................................................... vi
Issues For Consideration .......................................................................................................... vii
Summary Of The Arguments ................................................................................................. viii
Written Submissions .................................................................................................................. 1
I. A Magistrate cannot impose extraneous condition while providing bail in a bailable
offence.................................................................................................................................... 1
I.1. Bail is a matter of right ............................................................................................ 1
I.2. Magistrate has no power to impose an extraneous condition like surety being
local to his satisfaction .................................................................................................... 2
I.3. The magistrates order amounts to violation of right to fair trial ......................... 2
I.4. The magistrates order is violating the fundamental rights of the accused. ............ 3
I.5. Imposition of this condition is ultimately defeating the purpose of section 436. .... 3
Prayer ......................................................................................................................................... 5




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I IN ND DE EX X O OF F A AU UT TH HO OR RI IT TI IE ES S
CASES:
Azeez v. State of Kerala, 1984 (2) Crimes 413 (Ker) ...1
Bharmar v. State of Orissa, 1981 Cr.LJ. 1057. .1
C.P.Aggarwal v. State of A.P., 2000 CrLJ 4310(AP) ..2
Gurmit Singh v. State, 1986 (2) Crimes 206 (Ori) ...2
Hanumanthegowda v. State of Karnataka, 1997 (1) Crimes 303 (Kant.).1
Kamala Dasi v. State of Assam, 2005 Cri LJ 234 (Gauh) .4
Kanubhai Chhaganlal v. State of Gujarat, 1973 CrLJ 533 (Guj.) ...1
Kota Appalakonda: In re AIR 1942 Mad 740. .4
Linga Raju v. State of Chattisgarh, 2002 (1) Crimes 474 (Chatt.) ...3
M.R.Narayan v. State, 2003 CriLJ 1472.. 4
Madhah Chandra Jena and Anr. v. State of Orissa, 1988CriLJ608.4
Manish v. State of U.P., 2008 CrLJ (NOC) 1123 (All). .2
Mewa Lal Maurya v. State of U.P., 1988 (2) Crimes 150 (All) ..4
Moti Ram v. State of M.P., AIR 1978 SC 1594. ...2
Moti Ram v. State of M.P., AIR 1978 SC 1594. ..3
Parameswaran v. The Inspector of Police 2012(4)CTC733..3
Rasiklal v. Kishore Khauchand Wadhwani, 2009 CrLJ 1887 (SC) .1,2
Ratilal Bhanji Mithani v. Asst. Collector of Customs, AIR 1967 SC 1639..4
Rishikumar v State of Rajasthan, 1984 (1) Crimes 780(Raj.). .2
T. Nagappa vs Y.R. Muralidhar, 2008 (5) SCC 633.2
Talab Hazi Hussain v. Madhukar Purshottam Mandkar, AIR 1958 SC 376...1
STATUTES:

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The Code of Criminal Procedure, 1973.1
BOOKS AND TREATISES:
Ratanlal & Dhirajlal, The Code of Criminal Procedure, 19th Edn., (Gurgaon: LexisNexis
Buttersworth Wadhwa Nagpur,2010)...3


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S ST TA AT TE EM ME EN NT T O OF F F FA AC CT TS S
- - I I - -
Renuka Jaiswal, a teenage girl, was a member of the Swimming Club Rajani, in Mumbai, and
used to practice swimming daily in the evening. The swimming club was situated very near to
her house. Her mother used to accompany her. Initially there was no problem. After few days
some local ruffians namely Ranjit Kapoor, Ashish Nehra, Rupesh Kumar, used to follow her,
used to tease her and sing abusive songs in the local language like aja meri bulbul, in
presence of the mother.
- - I II I- -
The mother took Renuka Jaiswal, on the next day and the next day the same kind of teasing
went on. The mother went to local Police Station in Bandra and lodged a complaint u/s 509 of
IPC, for abusive songs and gestures. Police could arrest Ranjit Kapoor (the others being
absconding) and produced him before the Court of Metropolitan Magistrate in Mumbai.
- - I II II I- -
The Learned Magistrate being annoyed with the nature of the crime had granted him bail u/s
436 of CrPC, since the offence was bailable one but while granting bail, he imposed a
condition to produce local sureties to the satisfaction of the Magistrate.
- - I IV V- -
The Learned Magistrate did so bearing in mind that ill-famed boy Ranjit Kapoor will fail to
produce local witnesses, hence would be kept in custody for sometime, which would be his
adequate punishment.

Hence the present suit before this Honble Court.

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S ST TA AT TE EM ME EN NT T O OF F J JU UR RI IS SD DI IC CT TI IO ON N
The Counsel for the Defendant most humbly submits that this Learned Metropolitan Court of
Bombay has the requisite jurisdiction to hear and adjudicate the present matter under Section
26 r/w Section 190 for offences under Schedule I of the CrPC, 1973. This is a bail petition
under S. 436 of the CrPC, 1973.



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I IS SS SU UE ES S F FO OR R C CO ON NS SI ID DE ER RA AT TI IO ON N

I. WHETHER THE CONDITION OF PROVIDING LOCAL SURETY IS AN EXTRANEOUS
CONDITION AND WHETHER MAGISTRATE IS EMPOWERED TO IMPOSE SUCH
CONDITIONS UNDER SECTION 436 OF CR.P.C., OR NOT?







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S SU UM MM MA AR RY Y O OF F T TH HE E A AR RG GU UM ME EN NT TS S

I. THE CONDITION OF PROVIDING LOCAL SURETY IS AN EXTRANEOUS CONDITION
AND THE MAGISTRATE IS NOT EMPOWERED TO IMPOSE SUCH CONDITIONS UNDER
SECTION 436 OF CR.P.C.
Section 436 imposes mandatory conditions with regard to bail. That an
accused is presumed innocent until proved guilty and in a bailable offence bail is a
matter of right. A magistrate cannot impose extraneous conditions which can
defeat the purpose of section 436 of CrPC. Therefore the imposition of conditions
of providing local surety to the satisfaction of the magistrate is an extraneous
condition and therefore is not valid.


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W WR RI IT TT TE EN N S SU UB BM MI IS SS SI IO ON NS S
I. A MAGISTRATE CANNOT IMPOSE EXTRANEOUS CONDITION WHILE PROVIDING
BAIL IN A BAILABLE OFFENCE.
I.1. BAIL IS A MATTER OF RIGHT
Section 436
1
states three essentialities for granting bail in a bailable offence
i. The person has been accused of bailable offence.
ii. Such person has been arrested and detained without warrant by an officer in charge of
a police station, or appear or is brought before the court.
iii. He is prepared to give bail.
If these conditions are fulfilled bail is a matter of right of the accused and not the discretion
of the court. The words shall be are mandatory in nature and leave no discretion with the
court. The court has no discretion while granting bail under section 436 CrPC.
2
Where a
person who is arrested is accused of a bailable offence, no needless impediments should be
placed in his way of being admitted to bail.
3
This section is imperative and under it the
magistrate is bound to release the person on bail or recognizance.
4

Since in the present case offence is bailable, the Magistrate is not competent to impose
condition and therefore the accused has a right to be enlarged on bail.
5


1
The Code of Criminal Procedure, 1973.
2
Rasiklal v. Kishore Khauchand Wadhwani, 2009 CrLJ 1887 (SC)
3
Kanubhai Chhaganlal v. State of Gujarat, 1973 CrLJ 533 (Guj.)
4
Bharmar v. State of Orissa, 1981 Cr.LJ. 1057.
5
Talab Hazi Hussain v. Madhukar Purshottam Mandkar, AIR 1958 SC 376; Azeez v. State of
Kerala, 1984 (2) Crimes 413 (Ker); Hanumanthegowda v. State of Karnataka, 1997 (1)
Crimes 303 (Kant.)

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I.2. MAGISTRATE HAS NO POWER TO IMPOSE AN EXTRANEOUS CONDITION LIKE SURETY
BEING LOCAL TO HIS SATISFACTION
In case of Rasiklal v. Kisore S/o Khanchand Wadhwani
6
the Supreme Court held that:
the right to claim bail granted by Section 436 of the Code in a bailable offence is an
absolute and indefeasible right. In bailable offences there is no question of discretion in
granting bail as the words of Section 436 are imperative.
In case of bailable offence under section 436 a magistrate can impose condition only with
respect to security and surety.
7
There is no law prescribing the geographical discrimination
implicit in asking for sureties from the courts district.
8

Therefore, the courts direction for local surety is illegal
9
and the court is not justified in
directing the accused to furnish local sureties for his release on bail.
10

I.3. THE MAGISTRATES ORDER AMOUNTS TO VIOLATION OF RIGHT TO FAIR TRIAL
An accused has a right to fair trial. He has a right to defend himself as a part of his
fundamental right as enshrined under Article 21 of the Constitution of India.
11

The petitioner has been charged with bailable offences, with regard to which magistrate has
no discretion. He must release the accused on bail provided he is willing to execute bonds for
his appearance. But the magistrate imposed the condition to bring the local surety with a view
of keeping the accused in the custody as a way of punishment. This act of the magistrate

6
Rasiklal v. Kisore S/o Khanchand Wadhwani, AIR 2009 SC 1341
7
Rasiklal v. Kishore Khauchand Wadhwani, 2009 CrLJ 1887 (SC)
8
Moti Ram v. State of M.P., AIR 1978 SC 1594.
9
Rishikumar v State of Rajasthan, 1984 (1) Crimes 780(Raj.).
10
Gurmit Singh v. State, 1986 (2) Crimes 206 (Ori); C.P.Aggarwal v. State of A.P., 2000
CrLJ 4310(AP); Manish v. State of U.P., 2008 CrLJ (NOC) 1123 (All).
11
T. Nagappa vs Y.R. Muralidhar, 2008 (5) SCC 633.

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amounts to denial of the right to fair trial to the accused as he is punishing him even before
his guilt has been established.
I.4. THE MAGISTRATES ORDER IS VIOLATING THE FUNDAMENTAL RIGHTS OF THE
ACCUSED.
An accused person is presumed under the law to be innocent till his guilt is proved. As a
presumably innocent person, he is entitled to freedom and every opportunity to look after his
own case. Therefore a presumably innocent person must have his freedom to enable him to
establish his innocence. The Supreme Court held that unnecessary inhibitive condition ought
not to be imposed while granting bail. An order rejecting surety because he or his estate was
situated in a different district was held to be discriminatory and violative of article 14 of the
constitution.
12

In the case Parameswaran v. The Inspector of Police
13
, the court held that:
Under Section 436 of CrPC, it was mandatory for a Magistrate to grant bail and he had got
no power to deny bail at all. Denial of bail in a bailable offence was, thus, a serious
infringement of fundamental right guaranteed under Constitution. Such an order denying bail
was undoubtedly without jurisdiction and illegal. Therefore, such order could not be allowed
to sustain
I.5. IMPOSITION OF THIS CONDITION IS ULTIMATELY DEFEATING THE PURPOSE OF
SECTION 436.
The object of imposing condition while granting bail is primarily to see that the accused is
readily available for the trial. It is also indubitable that the condition for granting bail should

12
Moti Ram v. State of M.P., AIR 1978 SC 1594., Linga Raju v. The State of Chattisgarh,
2002 (1) Crimes 474 (Chatt.)
13
2012 (4) CTC 733

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not be so excessively onerous as to amount to denial of the rights of a citizen guaranteed by
the constitution.
14
The accused has a right to be enlarged on bail.
15
So imposing of a
condition of this kind in a bail order leads to infringement of the provisions of section 436 in
a case conditions are not fulfilled.
16
In the present case the magistrate purposefully imposed
the condition which could not be fulfilled so that he can refuge bail this is not permitted
under section 439 Cr.P.C. as in bailable offences cancellation of bail can be done only in
exceptional circumstances.
17
A benefit to which one is entitled as of right cannot be taken
away without an express sanction of the law.
18



14
Mewa Lal Maurya v. State of U.P., 1988 (2) Crimes 150 (All); Kamala Dasi v. State of
Assam, 2005 Cri LJ 234 (Gauh); M.R.Narayan v. State, 2003 CriLJ 1472.
15
Talab Hazi Hussain v. Madhukar Purshottam Mandkar, AIR 1958 SC 376; Azeez v. State
of Kerala, 1984 (2) Crimes 413 (ker); Hanumanthegowda v. State of Karnataka, 1997 (1)
Crimes 303 (Kant.)
16
Kota Appalakonda: In re AIR 1942 Mad 740.
17
Ratilal Bhanji Mithani v. Asst. Collector of Customs, AIR 1967 SC 1639.
18
Madhah Chandra Jena and Anr. v. State of Orissa, 1988CriLJ608

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P PR RA AY YE ER R

Wherefore, in the light of the above, it is most humbly prayed before this Learned Court to
hold, adjudge and declare:
To quash the condition for local surety and grant bail to the accused.
And in the ends of equity, justice and good conscience pass any other order, which the
Learned Court may so deem fit as per the facts of the present case.

All of which is most humbly and respectfully submitted.


Date: 27
th
August, 2014
Place: Mumbai
S/d_________________
( Counsel for Defendant)
Counsel code: 1041