TABLE OF CONTENTS

INDEX OF ABBREVIATIONS ……………………………………………………………...3

INDEX OF AUTHORITIES......................................................................................................4

STATEMENT OF JURISDICTION.........................................................................................6

STATEMENT OF FACTS..........................................................................................................7

STATEMENT OF ISSUES.........................................................................................................11

I. WHETHER THE PETITION IS MAINTAINABLE?

II. WHETHER THE INDUS COURT HAS THE JURISDICTION TO TRY
PANJKISTAN NATIONAL APPREHENDED FROM ITS TERRITORY?
III. WHETHER THE ARREST AND DETENTION BY THE INDUS ARMY IS
ILLEGAL?
3.1 WHETHER THE ACCUSED HAS A RIGHT TO BE ENLARGED ON
BAIL?
IV. WHETHER THE ACCUSED IS PROVIDED FREE AND FAIR TRIAL?

SUMMARY OF ARGUMENTS................................................................................................12

I. WHETHER THE PETITION IS MAINTAINABLE?

II. WHETHER THE INDUS COURT HAS THE JURISDICTION TO TRY
PANJKISTAN NATIONAL APPREHENDED FROM ITS TERRITORY?
III. WHETHER THE ARREST AND DETENTION BY THE INDUS ARMY IS
ILLEGAL?
3.1 WHETHER THE ACCUSED HAS A RIGHT TO BE ENLARGED ON
BAIL?
IV. WHETHER THE ACCUSED IS PROVIDED FREE AND FAIR TRIAL?

1
ARGUMENTS ADVANCED…………………………………………………………………..14

I. WHETHER THE PETITION IS MAINTAINABLE?

II. WHETHER THE INDUS COURT HAS THE JURISDICTION TO TRY
PANJKISTAN NATIONAL APPREHENDED FROM ITS TERRITORY?
III. WHETHER THE ARREST AND DETENTION BY THE INDUS ARMY IS
ILLEGAL?
3.1 WHETHER THE ACCUSED HAS A RIGHT TO BE ENLARGED ON
BAIL?
IV. WHETHER THE ACCUSED IS PROVIDED FREE AND FAIR TRIAL?

PRAYER………………………………………………………………………..……………….28

2
 INDEX OF ABBREVIATION

S. NO. ABBREVIATIONS WORDS

1. & And

2. § Section

3. §§ Sections

4. ¶ Paragraph

5. Art. Article

6. A.I.R All India Reporter

7. Anr. Another

8. Ed. Edition
9. HC High Court

10. S.C.C. Supreme Court Cases

11. S.C.R. Supreme Court Records

12. AC Apex Court

13. Nos. Numbers

14. Ex Exhibit

15. ISO Inter –Services Operations

16. ATS

17. ICJ International Court of Justice

18. UN United Nations

19. FIR First Information Report

20. SLP Special Leave Petition

3
 INDEX OF AUTHORITIES

JUDICIAL DECISIONS

 Jadhav Case (India V/s. Pakistan)

 Mohd. Ajmal Amir Kasab V/s. State of Maharashtra
 State vs Mohd. Afzal And Ors. 2003 VIIAD Delhi 1, 107 (2003) DLT 385, 2003 (71)
DRJ 178, 2003 (3) JCC 1669

BOOKS

 D.D. BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW (Prentice-Hall of India,

2nd ed., 2005)
 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA (Universal Law Publishing Co.,
4th ed. 2010).
 D.D. BASU, COMMENTARY OF THE CONSTITUTION OF INDIA (Lexis Nexis
Butterworths, 9th ed. 2015).
 M.P. JAIN, INDIAN CONSTITUTIONAL LAW (Lexis Nexis Butterworths Wadhwa,
6th ed., 2010).

STATUTE/ TREATY

1. Indian Penal Code, 1860

2. Arms Act, 1959

3. Unlawful Activities (Prevention) Act, 1967

4. Explosives Act, 1884

5. Explosive Substances Act, 1908

6. Passport Act, 1920

7. Prevention of Damage to Public Property Act, 1984

4
8. Railways Act, 1989

9. Customs Act, 1962

10. Foreigners Act, 1946

DICTIONARIES
 Black's Law Dictionary, a law dictionary
 Merriam-Webster, a dictionary of American English
 Oxford English Dictionary

INTERNATIONAL CONVENTIONS

 Vienna Declaration
 Universal Declaration of Human Rights (UDHR)

DATABASES REFERRED

www.manupatra.com

www.scconline.com

www.westlawindia.com

www.lexisnexis.com

5
 STATEMENT OF JURISDICTION

The Petitioner humbly submits this Memorandum for applicants filed before this Honorable High

Court in pursuit of legal justice. The application invokes its jurisdiction under ‘Art. 136 of the

Constitution of India, 1950.’1 It sets forth the facts and the laws on which the claims are based.

1
“136. 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.”

6
 STATEMENT OF FACTS

PART I

Indus, officially known as the Republic of Indus, is located in South Central Asia, and is located
in both the eastern and northern hemispheres. It shares land borders with Panjkistan to the West,
Chino, Nelap, Bhatunand to the Northeast; and Surma and Angladesh to the East It is bounded
by the Indus Ocean on the South, the Arabic Sea on the Southwest, and the Bay of Bengal on the
Southeast. Statutory Rules and Regulations of Republic of Indus are Pari Materia to that of
Indian Republic. All International Treaties and Covenants of Indus Republic are same and
similar to that of Indian Republic.

PART II

Panjiksistan got separated from Indus in 1947 and since then relations between these two
countries have been strained. In 1948, Panjiksistan attacked Indus and occupied some part of the
State of Pannu and Pashmir, which was integral part of India. In 1965 and 1971, Panjiksistan
attacked Indus and faced humiliating defeat. In 1999, again Panjiksistan, resorted to another
misadventure and got its troops sneaked into Indus territories. Indus carried out military
operation and threw them out of Indus territories.

PART III

After tasting continuous defeat in conventional war, Panjiksistan realised that it could not
succeed in conventional war with Indus. It, therefore, started low intensity conflict with Indus
and established launch pads to strike terror attacks in Indus. It started harbouring and training
terrorists in occupied territory of State of Pannu and Pashmir. Terrorists have been killing
innocent persons and destroying Government properties. The terrorists enter Indus and carry out
terrorist attacks in Indus and return to Panjiksistan in case they survive.

PART IV

On 23 Nov 2015, twelve Lashkar –E- Khaiba terrorists, trained by Panjiksistan military and spy
agency ISO (Inter –Services Operations) left Panjiksistan for Trombay via sea, which is a

7
financial capital of Indus. These terrorist entered three days later i.e. on 26 Nov 2015, by
hijacking a boat owned by fisherman and killing them enroute. These terrorists targeted high
profile places including railway station terminals, premier hotels and hospitals killing innocent
persons. In this attack, more than 180 people including 20 police officers and 4 commandos were
killed. Around 410 others were severely injured. In the counter attack five out of seven terrorist
were killed, and two terrorist were successful in escaping to Panjiksistan from the sea route by
which they entered. The terrorist attack was a professional commando operation of Panjiksistan
military.

PART V

On 25 Sep 2016, the terrorists trained in Panjiksistan entered military units by donning army
uniforms and killed soldiers. The genocide caused by terrorists have been highly criticised at
international level. Not only this, State sponsored terrorists trained in Panjiksistan started
attacking Military installations and Units killing soldiers.

PART V (A)

Considering the increasing number of terrorist activities, 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.

PART VI

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. At international level, Indus
gathered support from all corners of the world. 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.

PART VI (A)

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

8
for getting operational intelligence and also to prove to the world that Panjiksistan was
sponsoring terrorism from the soil under its control. These terrorists were under the custody of
the Army for 30 days, during which Army gathered vital informations like who provided
financial aid to these terrorists etc. Investigation also revealed that the apprehended terrorist was
the one who had masterminded the terrorist attack in India on 26 November 2015. He also made
confessional statement to that effect before the Magistrate of competent jurisdiction.

PART VII

After 30 days, Army handed over the said terrorist to Anti-Terrorism Squad (ATS) for further
proceedings; Anti-Terrorism Squad (ATS) is specifically constituted to counter terrorism. The
said terrorist was into custody of ATS for 70 days. As the part and parcel of proceedings, the
terrorist was produced before the Court and he applied for bail.

PART VIII

Aggrieved by the surgical strike, Panjiksistan approached the International Court of Justice
alleging aggression by Indus on its soil and prayed that the apprehended Panjiksistan national be
handed over to the Panjiksistan. Alleging that confession was forcibly extracted from Masab
Khan and that he was not involved in terrorist attack in Trombay on 26 November 2015.
International Court of Justice has not passed any order on the petition.

Investigation of full case was carried out in Indus. After First Information Report, the matter was
handed to crime branch for investigation.

PART IX

In the meantime, since the charge sheet, within statutory period of 90 days of the arrest, was not
filed before the court of competent jurisdiction, the accused moved the Court of competent
jurisdiction for grant of bail under Sub-Section 2 of Sec 167 of Criminal Procedure Code. The
same was rejected. After rejection of bail application, the magistrate committed the case to Court
of Session of Competent Jurisdiction. 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,
1989. The accused raised following issues when he was committed to Court of Sessions.

9
(a) That Court in Indus did not have jurisdiction to try Panjiksistan national apprehended from its
territory.

(b) That, he was not given consular access, which was in contravention of Vienna Convention on
Consular Relations.

(c) That, the arrest and detention by Indus Army was illegal, which will vitiate subsequent
proceedings.

(d) That, since the charge sheet was not filed within the statutory period of 90 days; the accused
had a right to be enlarged on bail. Since he was not enlarged on bail, he could not engage counsel
of his choice

(e)That, the accused requested to be defended by counsel of his choice that is Counsel from
Panjiksistan but the same was not provided to him and a counsel from Indus was provided to
him, which will seriously prejudice him in preparation of his defence.

(f) That, the accused did not expect fair trial in Indus specially considering adverse publicity in
the media.

The Public Prosecutor vehemently refuted the contentions of the accused and argued that these
are misconceived and farfetched contentions which are bereft of any merit.

All these issues were rejected by the Court below. Appeal was filed before the HC of Trombay
challenging the dismissal of the contentions of the accused, which was dismissed.

The accused has filed SLP before the AC which is pending.

10
 STATEMENT OF ISSUES

I.

WHETHER THE PETITION IS MAINTAINABLE?

II.

WHETHER THE INDUS COURT HAS THE JURISDICTION TO TRY

PANJKISTAN NATIONAL APPREHENDED FROM ITS TERRITORY?

III.

WHETHER THE ARREST AND DETENTION BY THE INDUS ARMY IS

ILLEGAL?

3.1 WHETHER THE ACCUSED HAS A RIGHT TO BE ENLARGED ON

BAIL?
IV.

WHETHER THE ACCUSED IS PROVIDED FREE AND FAIR TRIAL?

11
 SUMMARY OF ARGUMENTS

I. WHETHER THE PETITION IS MAINTAINABLE?

The counsel on behalf of the Respondent unassumingly pray that the petition is not maintainable
as the appeal filed before the High Court of Trombay had been dismissed without any
judgement or decree given as such by the High Court of Trombay so there no reason for the
maintainability of the Petition.

II. WHETHER THE INDUS COURT HAS THE JURISDICTION TO TRY

PANJKISTAN NATIONAL APPREHENDED FROM ITS TERRITORY?

The counsel on behalf of the respondent would humbly plea that the Indus court has the
jurisdiction to try Panjkistan national apprehended from its territory.

The Indus laws have provisions for extra-territorial jurisdiction for the trial of any other
country’s national.

III. WHETHER THE ARREST AND DETENTION BY THE INDUS ARMY IS

ILLEGAL?

The counsel representing the respondent humbly uphold that the arrest and detention made by the
Indus Army was not illegitimate as clearly mentioned in the fact sheet, that the Indian army tried
to extract useful information regarding ‘terrorism’.

3.1 WHETHER THE ACCUSED HAS A RIGHT TO BE ENLARGED ON

BAIL?
The counsel on behalf of the respondent, humbly submits that the general rule of the
procedural law “Procedural is the handmaid of Justice” which says that the procedural laws
can be molded stretched looking into the intensity of the case so the accused has clearly
failed to apply for bail at his time span of confinement as it has no mention in the fact sheet.

12
IV. WHETHER THE ACCUSED IS PROVIDED FREE AND FAIR TRIAL?

The accused had killed numerous innocent lives which means that it would be better to
provide a just trial for the innocent lives that has been sacrificed under the sheet of
‘terrorism’ rather than the accused claiming for a free and fair trial.

13
 ARGUMENTS ADVANCED

I. WHETHER THE PETITION IS MAINTAINABLE?

1. The counsel on behalf of the Respondent unassumingly pray that the petition is not
maintainable as the appeal filed before the High Court of Trombay had been dismissed
without any judgement or decree given as such by the High Court of Trombay so there no
reason for the maintainability of the Petition.
2. Special Leave Petitions in Indian Judicial System has been provisioned The Constitution of
India under Art. 136 vests the Supreme Court of India with a special power to grant special
leave to appeal against any judgment or order or decree in any matter or cause passed or
made by any Court/tribunal in the territory of India. This is special power bestowed upon the
Supreme Court of India which is the Apex Court of the country to grant leave to appeal
against any judgment in case any substantial constitutional question of law is involved or
gross injustice has been done.

3. “Special leave petition” or SLP hold a prime place in the Indian judicial system. It provides
the aggrieved party a special permission to be heard in Apex court in appeal against any
judgment or order of any Court/tribunal in the territory of India. Special Leave petition or
SLP can be presented under following circumstance:

 SLP can be filed against any judgment or decree or order of any High Court /tribunal in
the territory of India.
 Or, SLP can be filed in case the High court refuses to grant the certificate of fitness for
appeal to Supreme Court of India.

The Full Bench of the Patna High Court held that in case a SLP is summarily rejected or
dismissed under Art 136 of the Constitution then such a dismissal does not lay down any
law.

14
4. The decision of the High Court against which the SLP is dismissed, would not operate as res-
judicata. However, when Supreme Court dismisses an SLP with reason, it might be taken as
the affirmation of the High Court views on merits of the case, thus there is no reason to dilute
the binding nature of precedents in such cases.2
The article talk about “special leave to appeal by the Supreme Court” reads:
(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 case or matter passed or made by any Court or Tribunal in the territory of India.”3
Thus, Special leave Petition (SLP) provides the aggrieved party a special permission to be
heard in Apex court in appeal against any judgment or order of any Court or tribunal in the
territory of India.4
5. The point to be noted here is that the article 136 talks about taking an appeal either from any
court or tribunal. The word or in the article limits the ambit of the article to appeal
from one judicial authority at a time. Thus the present petition is prima facie invalid and
against the true spirit of the provision of the constitution and of the motion.
The Hon’ble HC of Patna in the case of Smt. Tej Kumari vs Commissioner of Income Tax 5
while commenting over the dismissal of the appeal under Article 136 to the Hon’ble
Supreme Court in the case of Commissioner of Income tax vs. Ranchi Club Ltd.6said that –
“It is well settled principle of law that when a special leave petition is summarily dismissed
under article 136 of the Constitution, such dismissal does not lay down any law rather it
shall be deemed that the Supreme Court has simply held that it is not a fit case where
special leave petition should be granted. The same principle will not apply in a case where
civil appeal is dismissed by the Supreme Court holding that the appeal has no merit.”7,8

2
Smt. Tej Kumari vs. CIT (2001) 247 ITR 210
3
Article 136 of The Constitution of India, 1950
4
Indian Constitutional Law, Fifth Edition, Volume-I, M.P. Jain, Vedpal Law House
5
2001 164 CTR Pat 201
6
2001 247 ITR 209 SC
7
5 Commentary On The Constitution Of India, D.D. Basu , C.K. Thakker & S.S. Subramani & T. S.
Doabia & B. P. Banerjee eds., Vol. 8, 8th ed. 2012 6 Source;
8
https://indiankanoon.org/doc/580246/, last visited on 02/07/2017 at 18:23

15
In the case of Pritam Singh vs. the State9, it has been well said that, “The Supreme Court will not
grant special leave to appeal under Art. 136 of the Constitution unless it is shown that:-
- 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.” 10
A Special Leave Petition (SLP) is exercised only when there is “substantial question of law”
involved, or gross injustice has been done.11

II. WHETHER THE INDUS COURT HAS THE JURISDICTION TO TRY

PANJKISTAN NATIONAL APPREHENDED FROM ITS TERRITORY?
6. The counsel on behalf of the respondent would humbly plea that the Indus court has the
jurisdiction to try Panjkistan national apprehended from its territory.

§ 2 explains about the intra-territorial jurisdiction and the personal jurisdiction.

§ 2. Punishment of offences committed within India:

Every person shall be liable to punishment under this Code and not otherwise for every act or
omission contrary to the provisions thereof, of which he shall be guilty within India.

A. § 2 explains about intra-territorial jurisdiction of the Indian Criminal Courts. Every person
shall be punished, who commits an offence, within India. The words “Every person” clearly say
that subject to the General Exceptions (Chapter-IV), every person, irrespective of his caste,
region, religion, etc., shall be punished, if he is proved guilty under the provisions of this Code.

B. FOREIGNER:

9
AIR 1950 SC 169
10
Source; https://indiankanoon.org/doc/743851/, last visited on 02/07/2017, 18:28
11
Constitutional Law of India, Dr. J N Pandey, Central Law Agency

16
A foreigner, who is a guilty of any offence under this Code, shall be punishable under this Code,
if he has committed any offence in India, although the alleged offence might have not been an
offence in his mother land.

C. CORPORATIONS:

The corporations cannot be imposed corporal punishments for the offences which can be
committed by human beings only, viz., murder, treason, perjury, etc.

D. PERSONS EXEMPTED FROM THE I.PC.

§ 2 mentions “every person” within India. However, there are certain persons exempted from
the jurisdiction of Criminal Courts. These persons are given certain rights, privileges, etc.
This is the same position in other countries also. Such persons are:

(A) FOREIGN SOVEREIGNS:

Foreign Sovereigns are the persons completely exempted from the jurisdiction of the Indian
Criminal Courts.

(B) AMBASSADORS:

Certain immunities and privileges have been granted to Ambassadors of other countries by
the United Nations Organization. Accordingly every country has passed separate Acts giving
immunities and privileges to the Ambassadors.

The Diplomatic Privileges Act, 1964 of England, the United Nations (Privileges and
Immunities) Act, 1947 (Act No. XLV of 1947) of India, etc., are examples. Therefore,
Ambassadors are exempted from the jurisdiction of the Indian Criminal Courts.

(C) ALIEN ENEMIES:

The military persons of alien enemies do not come under the jurisdiction of ordinary
Criminal Courts, for the acts done connecting with the war. However, if they commit theft,
robbery, rape, etc., unconnected with war, they shall be tried by the Indian Criminal Courts.

17
 (D) WARSHIPS:

The warships entered into the Indian Sea waters cannot be tried under the ordinary Indian
Criminal Courts. The Public International Law applies to such men-of-war.

(E) PRESIDENT AND GOVERNORS:

The President of India and the Governors of the States are exempted from the jurisdiction of
the Criminal Courts, by Article 361 of the Indian Constitution.

(F) FOREIGN ARMY:

The Foreign army personnel entered into the Indian territories with the permission of the
Indian Government is exempted from the jurisdiction of the criminal courts.

E. “WITHIN INDIA”:

This phrase in Sec. 2 denotes that whoever commits any offence within India shall be
punishable. It shows the “intra-territorial jurisdiction”. According to Gazette of India,
Extraordinary, Part-III, Sec. 2, dated 30-9-1967, the territorial waters of India extends to
territorial sea- waters upto a distance of twelve nautical miles measured from the appropriate
base line.

7. PUBLIC INTERNATIONAL LAW: EXTRADITION-

“Extradition” is the surrender by one State to another of a person desired to be dealt with for
crimes for which he has been accused or convicted and which are justifiable in the courts of
the other States. Surrender of a person within the State to another State whether a citizen or
an alien is a political act done in pursuance of a treaty or an arrangement ad hoc.

A Request for Extradition can be initiated against a fugitive criminal, who is formally
accused of, charged with, or convicted of an extradition offence.

‘Fugitive Criminal’ means a person who is accused or convicted of an extradition offence

18
within the jurisdiction of a foreign State and includes a person who, while in India, conspires,
attempts to commit or incites or participates as an accomplice in the commission of an
extradition offence in a foreign State.

8. LEGISLATIVE BASIS FOR EXTRADITION IN INDIA:

The Extradition Act 1962 provides India’s legislative basis for extradition. The Act
consolidated the law relating to the extradition of fugitive criminals from India to foreign
states. It was substantially amended by Act 66 of 1993.
"The Government of India has entered into bilateral Extradition Treaties with 42 countries to
bring speed and efficiency to the process of extradition. Besides, India has entered into
Extradition Arrangements with 9 more countries. India is also a party to regional extradition
treaties such as the London Scheme (Commonwealth Scheme for the Rendition of Fugitive
Offenders 1966), an arrangement less than treaty status which is non-binding at international
law and does not impose legal obligations on participants unlike an Extradition Treaty. The
legal basis for Extradition with States with whom India does not have an Extradition Treaty
("non-Treaty States) is provided by Section 3(4) of the Indian Extradition Act, 1962 which
says that the Central Government may, by notified order, treat any convention to which India
and a foreign state are parties, as an Extradition Treaty made by India with that foreign state
providing for extradition in respect of the offences specified in that Convention. India is also
a party to the 1997 International Convention for the Suppression of Terrorist Bombings. This
also provides a legal basis for Extradition in Terror Crimes.

In May 2011, the Indian Government ratified two UN Conventions - the United Nations
Convention against Corruption (UNCAC) and the United Nations Convention against
Transnational Organised Crime (UNCTOC) and its three protocols. Article 16 of UNCTOC
can be used as a basis for extradition of fugitive criminals accused/convicted of offences that
are classified as Organized Crimes. While ratifying the Convention, Government of India
declared that "In pursuance of Article 16, paragraph 5(a) of the Convention, the Government
of India shall apply the Convention as the legal basis for cooperation on extradition with

19
 other States Parties to the Convention. Indian Law Enforcement Agencies can seek to make
use of the provisions of the convention accordingly.

9. COUNTRIES WITH WHICH INDIA HAS EXTRADITION TREATIES/ARRANGEMENTS:

India can make an extradition request to any country. While India’s treaty partners have
treaty obligations to consider India’s requests, in the absence of a treaty, it is a matter for the
foreign country to consider, in accordance with its domestic laws and procedures, whether
the country can agree to India’s extradition request on the basis of an assurance of
reciprocity. Similarly, any country can make an extradition request to India.

10. DESIGNATED CENTRAL AUTHORITY IN INDIA FOR EXTRADITION MATTERS

The Ministry of External Affairs (MEA), Government of India, is the Central Authority for
all incoming and outgoing requests for Extradition. CPV Division handles extradition matters
in the Ministry of External Affairs.

11. EXTRADITION LAWS IN INDIA:

In India, the Extradition Act, 1962, regulates the surrender of a person to another country or the
request for arrest of a person in a foreign land. According to the act, any conduct by a person in
India or elsewhere mentioned in a list of extradition offences punishable with a minimum one
year of imprisonment qualifies for an extradition request.

The process of extradition is to be initiated by the central government. Currently, India has
extradition treaties with 38 countries.

If there is no treaty with the country from which the fugitive is to be extradited, then there aren’t
any defined guidelines for the law to be applied and procedure to be followed. In such a scenario,
a lot depends on the cooperation and coordination between different authorities of the two
countries. Another option is to resort to a Mutual Legal Assistance Treaty wherein both countries
agree to exchange information in order to enforce criminal laws.

20
If the extradition request comes from two or more countries, then the government has the right to
take the call to decide which country is fittest for the request. Since 2002, India has extradited 44
fugitive criminals to various countries. On the contrary, India has got 61 criminals extradited to
itself from different countries since 2002.

21
22
23
12. THE CONDITIONS UNDER WHICH THE GOVERNMENT CAN DENY
EXTRADITION:

1. In case the government believes that the case is trivial, and it thinks that the surrendering of
the person is not being made in good faith, or in the interests of justice, or for political reasons, it
can deny the request.

2. If the surrender is barred by time in the law of the country which seeks extradition, then also
the person can't be extradited from India.

3. The government can also stop the process if it feels that the person will be charged with an
offence not mentioned in the extradition treaty.

4. The government can put extradition on hold if it feels the person accused will be charged for a
lesser offence disclosed by the authorities.

5. If the person is serving a jail term for an offence on Indian soil, which is different from the
offence for which the person is wanted abroad, then also the extradition process can be stopped.
Similarly if a fugitive criminal has committed an offence which is punishable with death in India,
while the laws of the foreign state do not provide death for the same offence, the criminal will
get life imprisonment in India.

III. WHETHER THE ARREST AND DETENTION BY THE INDUS ARMY IS

ILLEGAL?
13. The counsel representing the respondent humbly uphold that the arrest and detention
made by the Indus Army was not illegitimate as clearly mentioned in the fact sheet, that
the Indian army tried to extract useful information regarding ‘terrorism’.
These terrorists were under the custody of the Army for 30 days, during which Army
gathered vital information like who provided financial aid to these terrorists etc.
Investigation also revealed that the apprehended terrorist was the one who had

24
 masterminded the terrorist attack in India on 26 November 2015. He also made
confessional statement to that effect before the Magistrate of competent jurisdiction.12
14. The counsel would like to hold the sub-contention that as the words of the moot
Proposition portray that the accused had been so well-trained, professionally and
psychologically strong that the inbuilt capacity of the accused had been incredible to
have been broken down in a long span of 30 days.
§ 164 of CrPC - Confession before Magistrate - Whether voluntary and truthful – It can
be relied that, there is no reason to doubt that it was not made voluntarily and without
any influence or duress from any external agency - Magistrate fully resorted to all
safeguards under § 164 of CrPC and have been sufficient time to reflect as to whether he
really wanted to make the confession.

3.1 WHETHER THE ACCUSED HAS A RIGHT TO BE ENLARGED ON

BAIL?
15. The counsel on behalf of the respondent, humbly submits that the general rule of the
procedural law “Procedural is the handmaid of Justice” which says that the procedural
laws can be molded stretched looking into the intensity of the case so the accused has
clearly failed to apply for bail at his time span of confinement as it has no mention in the
fact sheet.

IV. WHETHER THE ACCUSED IS PROVIDED FREE AND FAIR TRIAL?

16. The counsel on behalf of the respondent, humbly submits that accused has been provided
with free and fair trial as the accused had killed numerous innocent lives which means
that it would be better to provide a just trial for the innocent lives that has been sacrificed
under the sheet of ‘terrorism’ rather than the accused claiming for a free and fair trial.
As clearly mentioned in the factsheet,

12
¶ PART VI (A)

25
On 23 Nov 2015, twelve Lashkar –E- Khaiba terrorists, trained by Panjiksistan military and spy
agency ISO left Panjiksistan for Trombay via sea, which is a financial capital of Indus. These
terrorist entered three days later i.e. on 26 Nov 2015, by hijacking a boat owned by fisherman
and killing them enroute. These terrorists targeted high profile places including railway station
terminals, premier hotels and hospitals killing innocent persons. In this attack, more than 180
people including 20 police officers and 4 commandos were killed. Around 410 others were
severely injured. In the counter attack five out of seven terrorist were killed, and two terrorist
were successful in escaping to Panjiksistan from the sea route by which they entered. The
terrorist attack was a professional commando operation of Panjiksistan military. 13

17. § 302 r/w § 120-B of Indian Penal Code, 1860.

The accused, Masab Khan was alleged for the offences under Section 120-B14 read with § 30215
of the Indian Penal Code, § 121 of the Indian Penal Code16 and § 16 of the Unlawful Activities
(Prevention)Act, 196717. Masab Khan portrayed exceptional cruelty, the manner in which he
committed the murders was inhuman. In the landmark judgment of Bachan Singh v. State of
Punjab18 the court laid down laid down guideline when death penalty should be awarded and this

13
¶ PART IV
14
Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment
for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is
made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had
abetted such offence

15
Punishment for murder. —Whoever commits murder shall be punished with death, or [imprisonment for
life], and shall also be liable to fine.

16
Waging, or attempting to wage war, or abetting waging of war, against the Government of India.

17
Punishment for terrorist act

(1) Whoever commits a terrorist act shall

(a) if such act has resulted in the death of any person, be punishable with death or imprisonment for life,
and shall also be liable to fine;

(b) in any other case, be punishable with imprisonment for a term which shall not be less than five years
but which may extend to imprisonment for life, and shall also be liable to fine.
18
1980 (2) SCC 684

26
case fits right in. There is absolutely no scope rather there should be no opportunity for
rehabilitation for a person who killed children, women, the elderly and police officers and in
addition he showed no expression of guilt or remorse. He well in advance knew the
consequences of his actions and he wanted to be a part of the conspiracy. He was indulged in
mindless killing of innocent people. Masab Khan attacked the Government of Indus and the
sovereignty of Indus and for acts like that severest punishment is completely equitable.

18. Masab was provided with basic procedural rights as guaranteed in Article 22(1) of the
Indian Constitution, the state provided Masab with a competent legal counsel, the Public
Prosecutor. In State vs Mohd. Afzal and Ors19, the Supreme Court said for invoking
Section 121 of the Indian Penal Code20, a formal declaration of war is not required: a
terrorist attack by militants across the border in Indus was sufficient to infer a war like
situation.

19
2003 (3) JCC 1669
20
Waging, or attempting to wage war, or abetting waging of war, against the Government of India.

27
 PRAYER

In the light of the issues raised, arguments advanced and authorities cited, the counsel for the
Respondent humbly prays that the Hon’ble Court be pleased to adjudge, hold and declare:

1. That, the petition filed by petitioner is not maintainable in the court of law.

2. That, the Panjksistan national be tried in the Indus territory

And pass any order that this Hon’ble High Court may deem fit in the interest of equity, justice
and good conscience. And for this act of kindness, the counsel for the appellant shall duty bound
forever pray.

Sd/-

(Counsel for Respondent)

28