JAI NARAIN VYAS UNIVERSITY

JODHPUR
MOOT COURT,VI SEMESTER 2018-19

BEFORE THE HIGH COURT

STATE OF RAJASTHAN…………….…………….….................. PROSECUTION

VERSUS

MR. X …………….…………….…………….……….…..........…… DEFENCE

MEMORIAL ON THE BEHALF OF

DEFENCE

SUBMITTEDTo: SUBMITTED By:

Adv. MukteshMaheshwari RaghavDaga

B.B.A. LL.B

Roll No. 32

1 ON THE BEHALF OF DEFENCE

 IN THE COURT OF SESSIONS, AT JODHPUR

Criminal Bail Application No. 1 Of 2018

[APPLICATION FILED UNDER SECTION 439 OF THE CRIMINAL
PROCEDURE CODE, 1973]

IN THE MATTER OF:

STATE OF RAJASTHAN…………….…………….….................. PROSECUTION

VERSUS

MR. X …………….…………….…………….……….…..........…… DEFENCE

ON SUBMISSION TO THE HON’BLE COURT OF SESSIONS, JODHPUR

WRITTEN SUBMISSIONS ON BEHALF OF THE DEFENCE

2 ON THE BEHALF OF DEFENCE

 TABLE OF CONTENTS

S.NO TOPIC PG.NO

1 LIST OF ABBREVIATIONS 4

2 INDEX OF AUTHORITIES 5

3 STATEMENT OF JURISDICTION 6

4 STATEMENT OF FACTS 7

5 ISSUE RAISED 8

6 SUMMARY OF ARGUMENTS 9

7 ARGUMENTS ADVANCED 10-14

8 PRAYER 15

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 LIST OF ABBREVIATIONS

IPC INDIAN PENAL CODE

CrPC CRIMNAL PROCEDURE CODE

AIR ALL INDIA REPORTER

Cr LJ CRIMNAL LAW JOURNAL

Vs VERSUS

u/s Under section

SCC SUPREME COURT CASES

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INDEX OF AUTHORITIES
Cases referred-

 Gurucharan Singh V. state

Websites referred-

 www.manupatra.com
 www.indiankanoon.org
 www.advocatekhoj.com
 www.indpaedia.com

Statues referred-
 Indian Penal Code,1860
 Criminal Procedure Code, 1973

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 STATEMENT OF JURISDICTION
The applicant has approached the Hon’ble Court of Session at Jodhpur
under Section 439 of the Code of Criminal Procedure, 1973 which reads as
under: 439.

Special powers of High Court or Court of Session regarding bail.

(1) A High Court or Court of Session may direct-

(a)that any person accused of an offence and in custody be released on bail,

and if the offence is of the nature specified in subsection (3) of section 437,
may impose any condition which it considers necessary for the purposes
mentioned in that sub- section;

(b) that any condition imposed by a Magistrate when releasing an person

on bail be set aside or modified: Provided that the High Court or the Court
of Session shall, before granting bail to a person who is accused of an
offence which is triable exclusively by the Court of Session or which,
though not so triable, is punishable with imprisonment for life, give notice
of the application for bail to the Public Prosecutor unless it is, for reasons to
be recorded in writing, of opinion that it is not practicable to give such
notice.

(2) A High Court or Court of Session may direct that any person who has
been released on bail under this Chapter be arrested and commit him to
custody.

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 Statement of facts
 Ms. A was pursuing her master’s degree from College at Jodhpur. As
a routine on 13th July she went to college on her scheduled time,
however till late evening when she did not return home her parents
got tensed and started contacting all her friends.
 One of her classmate Ms. B informed Ms. A’s father that Ms. A did
not attend the college on that day though she was seen with one Mr.
X outside the college premises and they were fighting and it was also
informed that Mr. X who happens to be their senior was harassing
her since few days and on 12th he misbehaved with Ms. A.
 Ms. A’s father suspected something wrong and immediately
approached the police and narrated the whole incidence and a
complaint was lodged immediately.
 The police started searching for Ms. A and for 4-5 days everything
was in vain as she was not traceable.
 On 18th july Ms. A’s father got a call from police and he was called to
police station immediately as a body was confiscated and it matched
to the description of Ms. A. When Ms. A’s father Mr. John and his
wife rushed to the police station, and they identified the body to be of
their daughter.
 The body was sent for post mortem and as per the report before her
death Ms. A was raped and she was also beaten with some sharp
weapon and was intoxicated. The body was thereafter handed to her
parents.
 Based upon complaint of father of Ms. A, her senior Mr. X was
arrested and he was charged u/s 363/ 376/ 302 IPC.

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 Issue Raised
1. WHETHER THE BAIL APPLICATION IS ACCEPTABLE OR
NOT?

2. WHETHER THE CHARGES ARE SUSTAINABLE

AGAINST Mr. X?

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 Summary of Argument
1. WHETHER THE BAIL APPLICATION IS ACCEPTABLE OR NOT?

The bail application is acceptable under section 439 Special powers of High
Court or Court of Session regarding bail.

(1) A High Court or Court of Session may direct-

(a) that any person accused of an offence and in custody be released on

bail, and if the offence is of the nature specified in subsection (3) of section
437, may impose any condition which it considers necessary for the
purposes mentioned in that sub- section;

(b) that any condition imposed by a Magistrate when releasing an person

on bail be set aside or modified: Provided that the High Court or the Court
of Session shall, before granting bail to a person who is accused of an
offence which is triable exclusively by the Court of Session or which,
though not so triable, is punishable with imprisonment for life, give notice
of the application for bail to the Public Prosecutor unless it is, for reasons to
be recorded in writing, of opinion that it is not practicable to give such
notice.

(2) A High Court or Court of Session may direct that any person who has
been released on bail under this Chapter be arrested and commit him to
custody.

 Otherwise in the interests of justice.

2. WHETHER THE CHARGES ARE SUSTAINABLE AGAINST Mr. X?

 Charges of kidnapping, rape and murder are not sustainable as the

acts of the Mr. X do not attract any of the ingredients of all the
offences, as well as his act does not constitute offences of
kidnapping, rape and murder under IPC.

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 Argument Advanced
1. WHETHER THE BAIL APPLICATION IS ACCEPTABLE OR
NOT?
The bail application is acceptable under section 439 Special powers of High
Court or Court of Session regarding bail.

(1) A High Court or Court of Session may direct-

(a) that any person accused of an offence and in custody be released on

bail, and if the offence is of the nature specified in subsection (3) of section
437, may impose any condition which it considers necessary for the
purposes mentioned in that sub- section;

(b) that any condition imposed by a Magistrate when releasing an person

on bail be set aside or modified: Provided that the High Court or the Court
of Session shall, before granting bail to a person who is accused of an
offence which is triable exclusively by the Court of Session or which,
though not so triable, is punishable with imprisonment for life, give notice
of the application for bail to the Public Prosecutor unless it is, for reasons to
be recorded in writing, of opinion that it is not practicable to give such
notice.

(2) A High Court or Court of Session may direct that any person who has
been released on bail under this Chapter be arrested and commit him to
custody.

i. The present application under section 439 of the Cr.P.C 1973 is

being filed by the petitioner for seeking grant of bail in FIR
registered at Police Station. The present petition is being moved as
the Petitioner has been arrested on 18 July, in connection with the
Said FIR. The petitioner is now in judicial custody.

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 ii. The petitioner is innocent and is being falsely implicated in the
above said matter as he has nothing to do with the matter.

iii. There is no reasonable ground to believe the accused guilty of the

offence.

iv. No previous conviction found against the applicant/accused.

v. Supreme court in the case Gurucharan Singh V. state1, held that

while exercising discretion, the first and foremost thing to be
remembered is that the object of detention pending criminal
proceedings is not punishment and that law favors allowance of
bail which is the rule, and the refusal of it is an exception.

vi. The petitioner is a responsible person and is living at the above-

mentioned address which is his permanent address also from
where he is living.

vii. The petitioner is innocent and no useful purpose would be served

by keeping him in custody and this is a fit case for grant of bail.

viii. The petitioner undertakes to abide by the conditions that this

Hon’ble court may impose at the time of granting bail to the
petitioner and further undertakes to attend the trial on every date
of hearing.

ix. The petitioner has not filed any other similar petition before this or
any other Hon’ble Court for grant of bail in case of the present FIR.

1
1978 AIR 179, 1978 SCR (2) 358
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 2. WHETHER THE CHARGES ARE SUSTAINABLE
AGAINST Mr. X?

i. Charges of kidnapping, rape and murder are not sustainable as the

acts of the Mr. X do not attract any of the ingredients of all the
offences, as well as his act does not constitute offences of kidnapping,
rape and murder under IPC

ii. Ingredients of offence of kidnapping are not attracted

a. Incriminal law,kidnapping is the unlawful carrying away

(asportation) and confinement of a person against his or her will.
And under section 361 of IPC “Whoever takes or entices any minor
under sixteen years of age if a male, or under eighteen years of age
if a female, or any person of unsound mind, out of the keeping of
the lawful guardian of such minor or person of unsound mind,
without the consent of such guardian, is said to kidnap such minor
or person from lawful guardianship.”

b. Now, it is important to note that in the present case, Ms. A was

seen with, Mr. X outside the college premises and they were
fighting, which does not shows that Mr. X taking her somewhere
else without her consentwhich does not constitute the kidnapping.
There is nothing from the material on record in present case to
attract Section 361 and 363 of IPC, thus, the charge of Kidnapping
and punishment for kidnapping is not sustainable.

iii. Ingredients of offence of rape is not attracted

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 a. Under section 375 A man is said to commit "rape" if he do
intercourse with a lady against:

iv. Her will.

v. Her consent.
vi. With her consent, when her consent has been obtained by putting her
or any person in whom she is interested, in fear of death or of hurt.
vii. With her consent, when the man knows that he is not her husband
and that her consent is given because she believes that he is another
man to whom she is or believes herself to be lawfully married.
viii. With her consent when, at the time of giving such consent, by reason
of unsoundness of mind or intoxication or the administration by him
personally or through another of any stupefying or unwholesome
Substance, she is unable to understand the nature and consequences
of that to which she gives consent.
ix. With or without her consent, when she is under eighteen years of
age.

x. When she is unable to communicate consent.

a. In the present case Mr. X and Ms. A were seen with each other
in figting which doesn’t fit in the circumstances of rape. Thus, it can
be said that the act of fighting does not result into rape of person.
So, there is nothing from the material on record in present case to
attract Section 375 and 376 of IPC, thus, the charge of rape and
punishment for rape is not sustainable.

xi. Ingredients of offence of murder are not attracted

a. In the present case, act of Mr. X s does not amount to murder

under Sec. 300 of I.P.C as the ingredients of the offence are not
satisfied. It is required under this section that the accused should
cause the harm to other one through which the other person die on
the spot or after few minutes later.

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 b. Now, it has to be seen that result of fighting is not a death, It is
given in the facts that the Mr. X and Ms. A were seen together on
the spot of fighting after that they didn’t seen together. Thus, act of
Ms. X does not amount to murder.

xii. Hence, all the charges are not sustainable in the present case.

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 Prayer

Wherefore, in light of the facts stated, issues raised, authorities cited &
arguments advanced, Hon’ble High Court of Rajasthan may be pleased to
adjudge & declare that:
1. The bail application is applicable.
2. Charges mentioned in FIR are not established prima facie
AND
Pass any other order that it may deem fit in the interest of justice, equity &
good conscience. All of which is most humbly prayed.

On behalf of
Mr. X
Counsels for the Petitioner
Sd/

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