In The High Court of Judicature at

ALLAHABAD
Writ Petition No. ________
Criminal Petition No. ________

Plea to quash the FIR under Section 482 of the Code of Criminal Procedure, 1973
Petition filed under Article 226 of the Constitution of India, 1949

WRITTEN SUBMISSION ON BELHALF OF THE RESPONDENT

State of Uttar Pradesh

STATE (INTERVENER)

Elysee Jagriti

PETITIONER
V.

Maulvi Dukhyan Doraya

RESPONDENT 1

Rodan Naadu

RESPONDENT 2
Submission to the Honble Chief Justice & other
Companion Judges of the High Court of Allahabad

2016
Freshers Pool Selection 2016 National Law Institute University, Bhopal
1
Memo for Respondents

TABLE OF CONTENTS
2

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

List of Abbreviations.....................................................................................................5

statement of Jurisdiction................................................................................................7

Statement of Facts.........................................................................................................9

Questions Presented....................................................................................................10

Summary of arguments................................................................................................11
7.1

Whether the petition for anticipatory bail maintainable before the High Court?.11

7.2

Whether there has been an attempt and abetment of suicide in the instant matter?
11

7.3
8

Whether practices observed during Shoharman violate public safety?................11

Pleadings and Authorities............................................................................................12

8.1

Whether the petition for anticipatory bail maintainable before the High Court? 12

8.1.1 The case at hand.............................................................................................12

8.1.2 The Role of Maulvi & Sensetivity of the case...............................................12
8.1.3 The case of Km. Hema Mishra v. The State of Uttar Pradesh.......................13
8.1.4 Not granting anticipatory bail or quashing of FIR will lead to a gross
miscarriage of justice in this case..........................................................................................14
8.1.5 Conclusion......................................................................................................14
8.2

Whether there has been an attempt and abetment of suicide in the instant matter?
15

8.2.1 Facts of The Case...........................................................................................15

8.2.2 Accident misnomer as Attempt to Suicide..................................................15
8.2.3 Abetment to Suicide and its Essentials..........................................................16
8.2.4 The lack of Suicide and any other evidence...................................................16
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8.2.5 Conclusion......................................................................................................16
8.3

Whether practices observed during Shoharman violate public safety?...............17

8.3.1 Article 25 of the Constitution of India, 1949.................................................17

8.3.2 What Shoharman means for the Mudlam?.....................................................17
8.3.3 Mourning not performed to Kill one self.......................................................18
8.3.4 Conclusion......................................................................................................18
9

Prayer for Relief..........................................................................................................19

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Memo for Respondents

INDEX OF AUTHORITIES
Cases

Joginder Kumar v. State of Uttar Pradesh................................................................................11

Km. Hema Mishra v. State of Uttar Pradesh............................................................................13
Ratilal v. State of Bombay...........................................................................................................17
Satvir Singh v. State of Punjab.............................................................................................11, 15
Statutes
Article 226 of The Constitution of India, 1949...........................................................................6
Article 25 of the Constitution of India, 1949.............................................................................15
Section 306 of the Indian Penal Code........................................................................................14
Section 482 of the Code of Criminal Procedure, 1973................................................................6
UP Amendment Act 16, Section 9...............................................................................................13

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Memo for Respondents

LIST OF ABBREVIATIONS

A.I.R.
AC
All

ALL INDIA REPORTER

APPELLATE COURT
ALLAHABAD
ANDHRA PRADESH

Art.
Bom
Cal
Co.

AP

Comm.

ARTICLE
BOMBAY
CALCUTTA
COMPANY
COMMISSIONER

CrLJ

CRMINAL LAW JOURNAL

Del

DELHI

e.g.

EXEMPLUM GRATIA (FOR EXAMPLE)

Ed.

EDITION

JT

JUDGMENTS TODAY

Lah

LAHORE

LR

LAW REPORTER

Mad

MADRAS

MANU

MANUPATRA

p.

PAGE

Para.

PARAGRAPH

Pun

PUNJAB AND HARYANA

QB

QUEENS BENCH

SC

SUPREME COURT

SCC

SUPREME COURT CASES

SCR
SCW
Sec.

Supp
U.O.I.

SUPREME COURT REPORTER

SUPREME COURT WEEKLY
SECTION
SUPPLEMENTARY
UNION OF INDIA

US

UNITED STATES OF AMERICA

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Memo for Respondents

vs. / v.

VERSUS (AGAINST)

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Memo for Respondents

STATEMENT OF JURISDICTION

1. The state has approached the Honble Bench to quash the First Investigation Report
filed against the Respondent under Section 482 of the Code of Criminal Procedure,
1973 which reads:
Saving of inherent powers of High Court: Nothing in this Code shall be deemed to limit
or affect the inherent powers of the High Court to make such orders as may be necessary
to give effect to any order under this Code, or to prevent abuse of the process of any Court
or otherwise to secure the ends of justice.
2. The petitioners have approached the Honble Bench claiming writ petition of the
nature Mandamus under Article 226 of The Constitution of India, 1949 which
reads:
Power of High Courts to issue certain Writs:
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout
the territories in relation to which it exercises jurisdiction, to issue to any person or
authority, including in appropriate cases, any Government, within those territories
directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III and for any other purpose
(2) The power conferred by clause (1) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action, wholly or in
part, arises for the exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or
in any other manner, is made on, or in any proceedings relating to, a petition under
clause (1), without
a. furnishing to such party copies of such petition and all documents in support of
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Memo for Respondents

the plea for such interim order; and

b. giving such party an opportunity of being heard, makes an application to the
High Court for the vacation of such order and furnishes a copy of such
application to the party in whose favor such order has been made or the counsel
of such party, the High Court shall dispose of the application within a period of
two weeks from the date on which it is received or from the date on which the
copy of such application is so furnished, whichever is later, or where the High
Court is closed on the last day of that period, before the expiry of the next day
afterwards on which the High Court is open; and if the application is not so
disposed of, the interim order shall, on the expiry of that period, or, as the case
may be, the expiry of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme court by clause (2) of Article 32.

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Memo for Respondents

STATEMENT OF FACTS
Maulvi Dukhyan Doraya is a Maulvi i.e. religious teacher of the Alamgir Tosque of Varanasi
and as his duty and job he practices, professes and promotes Mudlam practices to one and

all.
Rodan Naadu hails from Varanasi, Uttar Pradesh. He was born in a Mudlam family.
He was a Bachelor of Technology graduate from the State Technical University, Varanasi

but unfortunately was unsuccessful to get a job.

During his studies, Rodan Naadu was a regular visitor of the Alamgir Toskue, as he found
solace in the arms of god and was helped and guided by Maulvi Doraya, who was happy to

help Rodan and always listened patiently to his problems.

Over time, Rodans interest in the Mudlam Practices grew and he became much more

religious than he ever was.

Even though Rodan was never pressured to observe all ceremonies associated with being a
Mudlam, with the help of teachings of Maulvi Doraya, Rodan became a deeply religious
and practicing Mudlam, following all the customs associated of his sect. The parents didnt
object to this as they thought their son was turning towards a more righteous path guided

by Maulvi Doraya.
During the mourning of Shoharman, Rodan decided to observe tatbir, which is one of the

highly honored custom in his community.

This bothered Rodans parents but Maulvi Doraya convinced them by saying that their son is

doing the right thing and also taking responsibility for Rodans safety.
On the day of the very unfortunate day of the procession, Rodan, while performing tatbir,
accidentally cut his left hand artery, leading to severe blood loss and had to be rushed to
the hospital by the Maulvi and the other people there.

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Memo for Respondents

QUESTIONS PRESENTED

The following are the broad areas of issues the petitioners want the High court to address:
1.

Whether the petition for anticipatory bail maintainable before the High Court?

2.

Whether there has been an attempt and abetment of suicide in the instant matter?

3.

Whether practices observed during Shoharman violate public safety?

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Memo for Respondents

SUMMARY OF ARGUMENTS

6.1 WHETHER THE PETITION FOR ANTICIPATORY BAIL MAINTAINABLE BEFORE

THE

HIGH COURT?

The Respondents plead that the writ petition of Anticipatory Bail is Maintainable and the
maintainability for the same has been proved using Article 21 and Article 226.

6.2 WHETHER THERE HAS BEEN AN ATTEMPT AND ABETMENT OF SUICIDE IN

THE INSTANT MATTER?

The respondents plead that there hasnt been an attempt of abetment to suicide due to the
clear lack of the fulfilment of their essentials.

6.3 WHETHER PRACTICES OBSERVED DURING SHOHARMAN VIOLATE PUBLIC

SAFETY?

The practices observed during Shoharman are an integral and essential part of the
Mudlam sect. Also they are generally not dangerous except a few practices and being essential
they are also protected by Article 25 of the constitution of India.

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Memo for Respondents

PLEADINGS AND AUTHORITIES

7.1

WHETHER THE PETITION FOR ANTICIPATORY BAIL MAINTAINABLE

BEFORE THE

HIGH COURT?

It is very humbly presented before the High Court of Allahabad the writ petion under Article 226
of the Constitution of India, 1949 as the respondent believes that if event of arrest by the police,
even just for preventive detention, can seriously affect the Respondents reputation which is
protected under Article 21 of the Constitution of India, 1949. The respondent would like bring
this to attention to the court the very essentials of the charges filed again the Respondents are not
met. In the light of these circumstance and the issues at hand, keeping in mind the rights
Respondent would like to plead that the petition of anticipatory bail is maintainable before the
Court of Law.
7.1.1

The case at hand

Citing the case of Satvir Singh v. State of Punjab1, a Supreme Court case where it was
established that for anyone to be held for attempt of suicide the commission of suicide is an
essential. Here as we can establish by the facts there has been no SUICIDE.
7.1.2

The Role of Maulvi & Sensetivity of the case

A Maulvi is a religious leader and teacher. It is the Maulavis duty to profess and promote

the customs of the religion. He is a public figure and arrest of such a public figure can cause
great damage to his reputation, a irreparable damage to the reputation, as said in the case of
Joginder Kumar v. State of Uttar Pradesh2 which read:
The Supreme Court has observed "No arrest can be made because it is
lawful for the Police Officer to do so. The existence of the power to arrest is one
thing. The justification for the exercise of it is quite another. The Police Officer
must be able to justify the arrest apart from his power to do so. Arrest and
1 Satvir Singh v. State of Punjab AIR 2001 SC 2826
2 Joginder Kumar v. State of Uttar Pradesh 1994 AIR 1349
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Memo for Respondents

detention in police lockup of a person can cause incalculable harm to the

reputation and self-esteem of a person. No arrest can be made in a routine
manner on a mere allegation of commission of an offence made against a person.
It would be prudent for a Police Officer in the interest of protection of the
Constitutional rights of a citizen and perhaps in his own interest that no arrest
should be made without a reasonable satisfaction reached after some
investigation as to the genuineness and bonafides of a complaint and a
reasonable belief both as to the person's complicity and even so as to the need to
effect arrest. Denying a person of his liberty is a serious matter. The
recommendations of the Police Commission merely reflect the constitutional
concomitants of the fundamental right to personal liberty and freedom. A person
is not liable to arrest merely on the suspicion of complicity in an offence. There
must be some reasonable justification in the opinion of the Officer effecting the
arrest that such arrest is necessary and justified. Except in heinous offences, an
arrest must be avoided if a Police Officer issues notice to a person to attend the
Station House and not to leave the station without permission would do".
This matter is concerning a religious leader and a teacher who has been held for
performing his duties, this in a way increase the chances of religion based riots is this sensitive
case is not dealt with due care.
7.1.3

The case of Km. Hema Mishra v. The State of Uttar Pradesh3

The above mentioned case decided by the Supreme Court later and the first the High

Court gives us clearly that if a case is such that not granting of anticipatory bail would lead to
gross miscarriage of justice then in such a case the high court may exercise its writ jurisdiction
and powers over the case. This is mentioned in the excerpt from the given case:
5.It is for this reason; we are of the opinion that in appropriate cases the
High Court is empowered to entertain the petition under Article 226 of the
Constitution of India where the main relief itself is against arrest. Obviously,
when provisions of Section 438 of Cr.P.C. are not available to the accused
persons in the State of Uttar Pradesh, under the normal circumstances such an
3 Km. Hema Mishra v. State Of Uttar Pradesh (2014) 4 SC 453
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Memo for Respondents

accused person would not be entitled to claim such a relief under Art. 226 of the
Constitution. It cannot be converted into a second window for the relief which is
consciously denied statutorily making it a case of casus omissus. At the same
time, as rightly observed in para 21 extracted above, the High Court cannot be
completely denuded of its powers under Article 226 of the Constitution, to grant
such a relief in appropriate and deserving cases; albeit this power is to be
exercised with extreme caution and sparingly in those cases where arrest of a
person would lead to total miscarriage of justice. There may be cases where prearrest may be entirely unwarranted and lead to disastrous consequences.
Whenever the High Court is convinced of such a situation, it would be
appropriate to grant the relief against pre-arrest in such cases. What would be
those cases will have to be left to the wisdom of the High Court. What is
emphasized is that the High Court is not bereft of its powers to grant this relief
under Art. 226 of the Constitution.
From the above excerpt it can be determined that the High Court when it deems fit may
go against the UP Amendment Act 16 of 1976 to grant relief to injured parties in the cases where
not doing so will lead to gross miscarriage of justice.
7.1.4

Not granting anticipatory bail or quashing of FIR will lead to a gross miscarriage of
justice in this case
From the facts of the case it can be clearly seen that there was no commission of suicide.

This is just a case of an unfortunate mishap which has been over blown. The Respondents
believe that this is form of injustice a discrimination in a way on the basis of Religion and
Religious Practices and is a violation of Article 15 which includes Right against
Discrimination on the basis of Religion and Article 21 which provides Right to Live with
Human Dignity is being violated.
7.1.5

Conclusion
The Respondents firmly believe in the current system of justice and are not questioning

the constitutionality of the UP Amendment Act 16, Section 9. The Respondents are basing their
argument on the decision given by the full bench of the High Court of Allahabad and Supreme

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Memo for Respondents

Court of India in Km. Hema Mishra v. State of Uttar Pradesh 4 that High Court will exercise it
writ jurisdiction in the cases of gross miscarriage of justice which this case is as proved in the
section above. The court is entitled to hear this case and there has been an injury to Respondents
rights to which there can be a judicial remedy, and hence, the case is maintainable.

7.2 WHETHER THERE HAS BEEN AN ATTEMPT AND ABETMENT OF SUICIDE IN

THE INSTANT MATTER?

It is very humbly presented before the High Court of Allahabad from the Respondents
that in the case that is being tried in front of the Court of Law, there has been no attempt to
suicide and hence, there was no abetment to suicide. The Respondents plead the High Court to
judge the case on its merits and facts and not any sort of circumstantial evidence put forth by the
state.
7.2.1

Facts of The Case

The counsel for the respondents would like to bring the following to the attention of the court:

Rodan had started becoming more and more religious even before the graduated.
It was the duty of the Maulvi to guide a person to a more religious and righteous path.

7.2.2

Accident misnomer as Attempt to Suicide

Attempt to Suicide has been criminalized in the Indian Penal Code as non-bailable

offence under the Section 309 which reads:

309. Attempt to commit suicide. Whoever attempts to commit suicide and does any
act towards the commission of such offence, shall he punished with simple imprisonment for a
term which may extend to one year, or with fine, or with both.
Suicide has been defined in Blacks Law Dictionary5 as follows:
(1) Suicide is the willful and voluntary act of a person who understands the physical
nature of the act, and intends by it to accomplish the result of self-destruction.
4 Km. Hema Mishra v. State Of Uttar Pradesh (2014) 4 SC 453
5 Blacks Law Dictionary, 2nd Edition
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Memo for Respondents

(2) Suicide is the deliberate termination of one's existence, while in the possession and
enjoyment of his mental faculties. Self-killing by an insane person is not suicide.
There is a great emphasis on the intent to self-destruct and deliberate termination
telling us that in the act of suicide the intention to kill oneself is one of the essentials for any
death to be suicide.
Observing any kind of mouring during Shoharman, the intent is just to hurt yourself as a
sign of remorse. In no way it can be said that act to injure self was attempt to suicide as there is a
clear lack of intention. This situation can be best described as an accident and is not even close to
an attempt to suicide.
7.2.3

Abetment to Suicide and its Essentials

Section 306 of the Indian Penal Code6 defines abetment of suicide as If any person

commits suicide, whoever abets the commission of such suicide, shall be punishable with such
imprisonment of either description of a term which may extend to 10 years, and shall also be
liable to fine. In order to bring a successful conviction under this section it is important that its
three essential ingredients stand to be fulfilled i.e.
1. The deceased should have committed suicide;
2. The accused under this section should have abetted or instigated him/her to commit such an
act;
3. Such the alleged involvement of the accused should be direct in nature
7.2.4

The lack of Suicide and any other evidence

In the case presented by the state, one of the most important essentials of the Abetment to

Suicide has not been proved i.e. Commission of suicide which in the supreme court judgement of
Satvir Singh v. State of Punjab7 has been declared an essential.

6 Indian Penal Code, 1860 Section 306

7 Satvir Singh v. State of Punjab AIR 2001 SC 2826
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Memo for Respondents

7.2.5

Conclusion
It is safe to say that there has been no attempt of suicide as there is a clear lack of

intention to do so and also there was no abetment to suicide as the very essential part of it
commission of suicide has not been fulfilled.

7.3 WHETHER PRACTICES OBSERVED DURING SHOHARMAN VIOLATE PUBLIC

SAFETY?

It is humbly submitted before the High Court of Allahabad petition for abolition dangerous
customary practices during Shoharman such as zangir- zani, tatbir, etc are too dangerous to be
permitted in modern society and believes that these are in a clear violation of public safety also
keeping in mind the safety of the people performing it.
7.3.1

Article 25 of the Constitution of India, 1949

25. Freedom of conscience and free profession, practice and propagation of religion

1. Subject to public order, morality and health and to the other provisions of this Part, all
persons are equally entitled to freedom of conscience and the right freely to profess,
practice and propagate religion
2. Nothing in this article shall affect the operation of any existing law or prevent the State
from making any law
a. regulating or restricting any economic, financial, political or other secular activity
which may be associated with religious practice;
b. providing for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus.
Every religion in the country is free to practice, profess and propagate their religion but the state
can but reasonable restrictions on them. These restrictions can be for public safety and public
order.
7.3.2

What Shoharman means for the Mudlam?

Shoharman, bears importance for Mudlams because of the martyrdom of their leaders

successor, their leaders grandson, during the month. Mourning of Muharram, which
commemorates the Battle of Karbala in 680. During this month, while on a journey, Mudlam
leader, his family members and a number of his followers were surrounded by the forces of
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Memo for Respondents

Yazid, the Mudlam ruler of the time. During the siege, they were deprived of food and water and
many of them were put to death. The incident happened at a place called Karbala in Iraq in 61st
year after Hijra. This dispute was result of a disagreement among Muslims on the question of
succession after the martyrdom their primary leader. Some sects of Muslims hold meetings
where speeches are made on the happenings of Karbala and on the lives of martyrs. The
Mudlam, however, mourn on the 10th day of the month, the day of Ashura, by inciting sufferings
on themselves by hitting their body with hands, chains, etc.
This custom is not a part of any of the holy books of the Mudlams as this incident
happened after these books were written. The holy books of Mudlam are followed by all
Mudlams but this mourning is done only by a sect of them.
7.3.3

Mourning not performed to Kill one self

The mourning of shoharman is not performed by the Mudlams to kill themselves but to

show how they regret the killing of their religious leader. Also in Mudlam, it is not necessary to
perform practices such as tatbir, zani zangir, etc but is essential part of the Mudlam sect to mourn
for the losses of Karbala War. But all of this in no way disturb public safety or public order. The
performance of such mournings is generally in the common areas of a Tosque which again is not
a violation of public order.
7.3.4

Conclusion
In the land mark judgment of Ratilal v. State of Bombay8 it has been observed by the

Supreme Court that:

Religious practices of performance of acts in pursuance of religious
believes are as much a part of religion as faith or belief in particular doctrine.
Even though the mourning practices of Shoharman are not part of the holy texts of Mudlam it
can be observed that it is as much a part of Mudlam as any of its doctrine hence, proving tatbir
be an essential practice of the religion which is in turn protected by Article 25 of the
Constitution of India.

8 Ratilal v. State of Bombay AIR 1954 SC 388

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Memo for Respondents

PRAYER FOR RELIEF

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENT
ADVANCED, REASONS GIVEN AND AUTHORITIES CITED, THIS HONBLE COURT
MAY BE PLEASED TO:

I.

ADJUDGE RODAN NAADU AND DUKHIYAN DORYA NOT

GUILTY OF THE CHARGES PRESSED.

II.

DECLARE THE PRACTICE OF TATBIR, ZANIZANGIR AND OTHER DANGEROUS PRACTISES

IN RELATION TO SHOHARMAN, LAWFUL.

AND ANY OTHER RELIEF THAT THIS HONBLE COURT MAY BE

PLEASED TO GRANT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD
CONSCIENCE.

ALL OF WHICH IS RESPECTFULLY

SUBMITTED.

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