Greetings to the bench, this is the counsel appearing on behalf of the petitioner

in the case of JAMES DOE AND ANR vs BASH AND ORS

BASH vs THE STATE OF NCRC
BASH vs THE STATE OF NCRC
PRINCY AND ANR vs THE STATE OF NCRC

If it may please the bench, may the counsel address the bench collectively as
your Lordship
If your lordships are well versed with the facts may the counsel begin with the
submissions

If the court is satisfied, may the counsel proceed with the submissions.
Much obliged your Lordships,

1. My first submission will address the issue whether THE

COMPLAINANT HAS THE LOCUS TO FILE AN APPEAL CASE
IN THIS MATTER
During the course of the argument the counsel will show that The complainant has
locus to appeal in this matter as he has bonafide connection with the cause of action
and further the locus to file an appeal in this matter which can be granted from the
inherent powers of the High Court under section 482 off the CR PC.
The term locus has been defined in the case of , Amanulla & Ors. Vs. State of Bihar
& Ors That The traditional view of locus standi has been that the person who is
aggrieved or affected as standing before the Court i.e. to say he only has a right to
move the Court for seeking justice.
, it is pertinent here to observe that it may not be possible to strictly enumerate as to who
all will have locus to maintain an appeal, it depends upon the factual matrix of each case,
as each case has its unique set of facts.
 the Court should be liberal in allowing any third party, having bonafide connection with
the matter, to maintain the appeal with a view to advance substantial justice.

In the case of Manne Subbarao Vs. State of A.P.1, where the issue was whether a third party,
who is neither the complainant nor the first informant, can appeal to the Hon'ble Supreme
Court, against an order of acquittal by the High Court, if the State does not prefer an appeal.

The Court ruled that there is no black-letter law that permits the same. However, the Criminal
Justice System supports the view that a wrong done to anyone is a wrong done to oneself.
Justice is outraged when a guilty person is allowed to get away unpunished. It held that
access to Justice to every bona fide seeker is a democratic dimension of remedial
jurisprudence even as Public Interest Litigation, class action and pro bono proceedings are.

Further it is also stated that the court also has the power to take suo moto cognizance of the
issue in this case, any third person can remind the court for the same and the same has been
said in the case of

Further in the case of R. Rathinam vs. State it was held that
the power so vested in the High Court can be invoked either by the State or by any
aggrieved party. It was held that the said power could also be exercised suo motu by the
High Court. It was held that, therefore, any member of the public, whether he belongs to
any particular profession or otherwise could move the High Court to remind it of the
need to exercise its power suo motu.

The complainant has locus to file an appeal in this matter which can be granted from
the inherent powers of the High Court under section 482 off the CR PC.
These powers say that nothing in this code i.e. Cr.P.C. can limit the powers of a high
court and HC has the powers to make orders that may be necessary to meet ends of
justice or prevent abuse of the court. Which was further reiterated by the hon’ble SC
in the case of ,
State of Karnataka v. Muniswami– AIR 1977 SC 1489, held that the section envisages 3
circumstances in which the inherent jurisdiction may be exercised, namely, "to give
effect to an order under CrPC, to prevent abuse of the process of the court, and to
secure the ends of justice".

1
Manne Subbarao v State of A.P. (1980) 3 SCC 140.
["Saving of inherent power 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." ]

THE CODE OF CRIMINAL PROCEDURE, 1973, CANNOT LIMIT THE INHERENT

POWERS OF THE COURT, HENCE HON’BLE HC CAN ALLOW THE APPEAL
BY THE COMPLAINANT
The above arguments tell us that the inherent powers of the HC cannot be limited by the
Code of Criminal Procedure, 1973.
The Section 24 of the Cr.P.C. which say that a public prosecutor is allotted to fight a criminal
case from the side of the state, cannot limit the inherent powers of the hon’ble HC. Hence, the
hon’ble court can allow the appellant to appeal in this matter to to prevent abuse of the
process of the court, and to secure the ends of justice.

] THE ABOVE SECTION SHOULD BE INVOKED AT THERE CANNOT BE A

BLANKET INTERIM ORDER THROUGH PRE-ARREST NOTICE

The hon’ble sessions court passed an order to issue a pre-arrest notice 2, without any
specifications and time duration for which it is valid. Such a blanket effect the powers of the
investigating agency to investigate into the cognizable offences, hence posing a threat to
Right to Access to Justice, enshrined in the Article 143 and Article 214 of the constitution of
India.

The same was held in the case, Neeharika Infrastructure Pvt. Ltd v. State of Maharashtra 5,
that,

“such a blanket interim order passed by the High Court affects the powers of the
investigating agency to investigate into the cognizable offences, which otherwise is a
statutory right/duty of the police under the relevant provisions of the Cr.P.C.”

2
Moot Proposition ¶15.
3
India Const. Art. 14.
4
India Const. Art. 21.
5
Neeharika Infrastructure Pvt Ltd. v State of Maharashtra 2021 SCC OnLine SC 315.
“Granting of such blanket order would not only adversely affect the investigation but would
have far reaching implications for maintaining the Rule of Law. Where the investigation is
stayed for a long time, even if the stay is ultimately vacated, the subsequent investigation may
not be very fruitful for the simple reason that the evidence may no longer be available.”

It has been contended that the inherent powers of the hon’ble HC should be invoked and the
appellant should be allowed to appeal in this matter as there is an abuse of power.

The hon’ble sessions court passed an order to issue a pre-arrest notice, without any
specifications and time duration for which it is valid. Such a blanket effect the powers of the
investigating agency to investigate into the cognizable offences, hence posing a threat to
Right to Access to Justice, enshrined in the Article 14 and Article 21 of the constitution of
India.

The SC, further, in Madhu Limaye v. Maharashtra, has held that the following principles
would govern the exercise of inherent jurisdiction of the HC:

1. Power is not to be resorted to, if there is specific provision in code for redress of
grievances of aggrieved party.
2. It should be exercised sparingly to prevent abuse of process of any Court or
otherwise to secure ends of justice.

 The Supreme Court, in Madhu Limaye v. Maharashtra, has said, "Nothing in the Code,
not even Section 397 can affect the amplitude of the inherent power preserved in
Section 482. Where the impugned interlocutory order clearly brings about a situation
which is an abuse of the process of the court then for the purpose of securing the ends
of justice, interference by the High Court is absolutely necessary and nothing contained
in Section 397 (2) can limit or affect the exercise of the inherent power of the High
Court".

My second submission will address the issue that WHETHER A PRE-ARREST

NOTICE SHOULD BE ISSUED TO THE PETITIONER IN THE ANTICIPATORY
BAIL APPLICATION FILED BY HIM BEFORE THE LD. SESSIONS JUDGE
During the course of the argument the pre arrest notice should be issued to the
petitioner as an interim protection to avoid his immediate arrest and frustration of his
right to approach superior courts, the pre arrest notice is TO STRIKE BALANCE
BETWEEN THE RIGHT OF AN INDIVIDUAL TO HIS LIBERTY AND THE RIGHT
OF THE POLICE TO INVESTIGATE INTO CRIMES and is in line with THE SEC
41A OF THE CR.P.C.

The pre arrest notice issued to the petitioner acts as an interim protection TO AVOID
HIS IMMEDIATE ARREST so that he can approach superior courts

The Sub-section (4) of Section 438 of the Code of Criminal Procedure, as applicable to the
State of Maharashtra6, states that the applicant of an anticipatory bail should be present at the
tile of hearing, the Court considers such presence necessary in the interest of justice.

It is contended that the moment when the anticipatory bail application of an accused, like the
applicant in this application, is disposed, the interim protection terminates instantly, and the
accused is exposed to the possibility of arrest. The moment the applicant (accused) is
arrested, his right to move the High Court under Section 438 of Cr.P.C., invoking the
concurrent jurisdiction vested in the High Court stands forfeited and frustrated.

In the case of, Abdul Razzak Abdul Sattar & Another v. State of Maharashtra & Others 7, it
was pointed out that,

“the jurisdiction of the High Court and Sessions Court under Section 438 of the Code of
Criminal Procedure is concurrent and therefore, the applicant whose application under
Section 438 is rejected by the Sessions Court, has a right to move the High Court.”

Hence by this, the provisions of sub-section (4) of Section 438 of the Code of Criminal
Procedure, will therefore, violate the Article 148 of the Constitution of India that is Right to
Equality before law. To safeguard these rights an interim protection should be provided to the
accused, so that he can frustrate his right to appeal in the High Court.

The same was held in the case of, Abdul Razzak Abdul Sattar & Another v. State of
Maharashtra & Others9,

“the Sessions Court refusing to grant anticipatory bail may direct that interim order granted
to the applicant should continue for a limited period till the applicant approaches the High
Court.”
6
Code of Criminal Procedure (Maharashtra Amendment) 1973, § 438(4).
7
Abdul Razzak Abdul Sattar & Another v State of Maharashtra & Others 1987 (3) BomCR 241.
8
India Const. Art. 14.
9
Abdul Razzak Abdul Sattar & Another v State of Maharashtra & Others 1987 (3) BomCR 241.
Similarly, in the case of, Sameer Narayanrao Paltewar v. State of Maharashtra10, it was held
by the hon’ble court that,

“If the Sessions Court rejects the application for anticipatory bail upon final hearing and the
accused is present before the Sessions Court in pursuance of directions given under Section
438(4) of the Cr.P.C. (Maharashtra Amendment), the Court shall extend the interim
protection operating in favour of the accused for a minimum period of three working days,
on the same conditions on which interim protection was granted during pendency of the
application for anticipatory bail or on such further conditions as the Sessions Court may
deem fit, in the interest of justice.”

Therefore, in the present case the pre-arrest notice issued to petitioner, by the Ld. Sessions
Judge, after disposal of the anticipatory bail acts as an interim protection of the petitioner
from arrest, so that he can frustrate his right to move the High Court.

COURT HAS TO STRIKE BALANCE BETWEEN THE RIGHT OF AN INDIVIDUAL TO

HIS LIBERTY AND THE RIGHT OF THE POLICE TO INVESTIGATE INTO CRIMES

The society has a vital stake in both of these interests namely, personal liberty and the
investigational power of the police, though their relative importance at any given time
depends upon the complexion and restraints of political conditions.

It is courts responsibility to care of the THE RIGHT OF AN INDIVIDUAL TO HIS

LIBERTY given under article 21 of the constitution

In the case of Sushila Aggarwal and others vs State (NCT of Delhi) and another11, the

hon’ble court held that,

“The High Court or Session court while granting anticipatory bail may impose conditions
[Section 438(2)] with a view to strike a balance between the individual’s right to personal
freedom and the investigational right of the police.”

10
Sameer Narayanrao Paltewar v State of Maharashtra 2021 SCC OnLine Bom 2192.
11
Sushila Aggarwal and others v State (NCT of Delhi) and another 2020 SCC OnLine SC 98.
The court has its own discretion in providing the safeguard For the aforementioned
contention

As per the Hon'ble Supreme Court in the case, Sukhwant Singh & Ors v. State of Punjab12,

“interim bail acts as a means/ measure to safeguard the reputation of an accused. The
Hon'ble Apex Court has further recognized that "in the power to grant bail there is inherent
power in the court concerned to grant interim bail to a person pending final disposal of the
bail application

Further it is contended that the recent legislative and judicial intent has been towards the
victims right .

It was held in the case of Bal Chand Jain v. State of M.P.13 that,

“Since denial of bail amounts to deprivation of personal liberty, the Court should lean
against the imposition of unnecessary restrictions on the scope of section 438, especially
when no such restrictions have been imposed by the legislature in the terms of that section.

Amended provisions make it compulsory for the police to record the reasons for making
arrest as well as for not making an arrest in respect of a cognizable offence for which the
maximum sentence is up to seven years. Reference in this connection may also be made
to Section 41A14 inserted vide Act 5 of 2009.

Above mentioned provisions make it compulsory for the police to issue a notice in all such
cases where arrest is not required to be made under Clause (b) of sub-section (1) of the
amended Section 41. But, all the same, unwillingness of a person who has not been arrested
to identify himself and to whom a notice has been issued under Section 41A, could be a
ground for his arrest. Legislation has laid down various parameters, warranting arrest of a
person, which itself is a check on arbitrary or unwarranted arrest and the right to personal
liberty guaranteed under Article 21 of the Constitution of India.15

DETENTION OF THE PETITONER CAN CAUSE IRREPARABLE LOSS TO A

PERSON'S REPUTATION

12
Sukhwant Singh & Ors v State of Punjab (2009) 7 SCC 559.
13
Bal Chand Jain v State of M.P. 1977 AIR 366.
14
Code of Criminal Procedure 1973, § 41(A).
15
Hema Mishra v State of U.P. (2014) 4 SCC 453.
In this regard, the Hon'ble Supreme Court, discussing the scope of interim bail, in Lal
Kamlendra Pratap Singh v. State of U.P. and Ors.16, (2009)4 SCC 437 has held, 

"In appropriate cases interim bail should be granted pending disposal of the final bail
application, since arrest and detention of a person can cause irreparable loss to a person's
reputation...."

In the present case, the accused is a board member of a big gaming company. An arrest can
loss of reparation of the individual as well as the company.

THE PRE-ARREST NOTICE IS IN LINES WITH THE SEC 41A OF THE CR.P.C.

Section 41A of the Cr.P.C17 states that, arrest Off a person is not required under the
provisions of Sec 4 1(1), and issue a notice directing the person against whom a reasonable
complaint has been made to appear at such other place as may be specified in the notice.

Compliance of section 41 (A) Cr.P.C is mandatory in case of offences punishable with

maximum 7 years imprisonment.”

Hon'ble Supreme Court, in the case of Arnesh Kumar v. State of Bihar18 held that while
deciding an application for ABA for offences u/s 498A, felt it necessary to observe that there
should be a mandatory notice u/s 41A to be sent to the accused if he is booked for offence
with punishment up to 7 years.

While allowing a plea for anticipatory bail, Justice N Anand Venkatesh also made note that
there is a need in inculcate a culture against making arrests when it is unnecessary to the
investigation, by invoking Section 41A of the Code of Criminal Procedure (Cr.P.C.), 197319

16
Lal Kamlendra Pratap Singh v State of U.P. and Ors. (2009)4 SCC 437.
17
Code of Criminal Procedure 1973, § 41(A).
18
Arnesh Kumar v State of Bihar (2014) 8 Scc 273.
19
Meera Emmanual, ‘Police should ‘pull up their socks’, Madras HC issues directions to curb unnecessary
arrests’ < https://www.barandbench.com/news/police-madras-hc-unnecessary-arrests> accessed 20 September
2021.