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JUSTICE P.B.

SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

TEAM CODE: 133

JUSTICE P.B.SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

IN THE HONORABLE FEDERAL COURT OF INDIYANA

MR. J. K. RAWAL KUMAR ……. PETITIONER

v.

CENTRAL BUREAU OF INVESTIGATION ….….RESPONDENT

MEMORIAL ON BEHALF OF THE PETITIONER


JUSTICE P.B.SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

TABLE OF CONTENTS

MEMORIAL ON BEHALF OF THE PETITIONER


JUSTICE P.B.SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

MEMORIAL ON BEHALF OF THE PETITIONER


JUSTICE P.B.SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

LIST OF ABBREVATIONS

AIR : All India Reporter


Art : Article
CBI : Central Bureau of
Investigation
CRPC : Criminal Procedure
Code
DSPE : Delhi Special Police
Establishment Act
GO : Government Order
HC : High Court
Ind : Indiyana
INTERPOL/ICPO : International
Criminal Police Organization
Ors. : Others
PE : Preliminary Enquiry
SC : Supreme Court
SCC : Supreme Court Cases
Sec : Section
vs : Versus

MEMORIAL ON BEHALF OF THE PETITIONER


JUSTICE P.B.SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

INDEX OF AUTHORITIES

A. Cases

1. Advance Insurance Co. vs. Gurudasmal , (1970)1 SCC 633

2. Harish Rawat vs. Central Bureau Of Investigation

3. Kazi Lhendup Dorji vs. Central Bureau Of Investigation , (1994) Supp (2)
SCC 116

4. M.Balakrishna Reddy vs. Director , Central Bureau Of Investigation ,New


Delhi (2008)

5. M.C.Mehta (Taj Corridor Scam) vs. Union Of India

6. State Of West Bengal & Ors. vs. Committee For Protection Of Democratic
Rights , (2010) 3 SCC

7. Strawboard Manufacturing Co.Ltd vs. Gutta Mill Worker's Union ,1953


SCR 439

MEMORIAL ON BEHALF OF THE PETITIONER


JUSTICE P.B.SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

B. Books
1. Commentary on the Constitution of India: Durga Das Basu

2. Constitutional Law Of India: J. N. Pandey

3. The Criminal Procedure Code

STATEMENT OF JURISDICTION

MEMORIAL ON BEHALF OF THE PETITIONER


JUSTICE P.B.SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

It is most humbly submitted that the Petitioner has approached this Hon'ble
Federal Court under Article 32 of Constitution of Indiyana on ground of
violation of fundamental rights by the Central Bureau Of Investigation ( CBI).
The Petitioner most humbly and humbly submits before the jurisdiction of the
present court and accepts that it has the power and authority to preside over the
present case.

MEMORIAL ON BEHALF OF THE PETITIONER


JUSTICE P.B.SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

STATEMENT OF FACTS

1. CBI is a Premier Investigating Agency Of India . The agency has been


known to investigate several economic crimes , special crimes , cases of
corruption and other high profile cases.
It's headquarter is located in New Delhi . It derives it's powers from DSPE
ACT ,1946.

2. The word INTERPOL is radio - telegraph code for the International


Criminal Police Organization which consists of 188 members countries who
have agreed to ensure and promote the widest possible assistance between all
criminal police authorities in the prevention and suppression of ordinary law
crimes .The Organization's headquarter is in Lyon , France .

3. India is one of the oldest members of INTERPOL having joined the


organization in 1949 . Each of INTERPOL's member countries operates
National Central Bureau (NCB) which serves as the national platform for
cooperation between Domestic Law Enforcement units and International
Police Committee .

4. Raids were conducted in many parts of countries by Federal Agency Of


Indiyana (Hereinafter CBI) .On 26th August, 2017, news broken on electrion
media in consequence of that some people in connection of child trafficking for
child prostitution we're arrested . Action of CBI was in the pursuance of alert
issued by the INTERPOL . The arrested people were prominent personalities
including Mr.Rawa Kumar ( Social worker) .

5. Mr.Rawal Kumar is an influential famous social worker in Mahayana , a


developed State in Indiyana . An Orphanage named Child Home for providing
food, shelter and education to children is being run by him . He took many
children for educational visit to many countries .

MEMORIAL ON BEHALF OF THE PETITIONER


JUSTICE P.B.SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

6. It was alleged that Mr.Rawal Kumar was involved in certain malpractices


such as selling children (Child trafficking) for prostitution under the name of
educational visits.

7. Mr.Rawal Kumar approached the Federal Court Of Indiyana as aggrieved by


the arrest and detention. Some fundamental questions of Constitutional
importance have been raised in his petition.

ISSUES PRESENTED

I
WHETHER THE ARREST OF MR. RAWAL KUMAR BY THE CBI
VIOLATES THE DUE PROCESS
OF LAW ?

II
WHETHER THE CBI IS AUTHORIZED TO ARREST THE ACCUSED ON AN
ALERT ISSUED BY INTERPOL WITH THE CONSENT OF THE
STATE GOVERNMENT ?

III
WHETHER THE GENERAL CONSENT GIVEN BY THE STATE
GOVERNMENT TO CBI FOR INVESTIGATION OF A PARTICULAR
CRIME CAN BE REVOKED BEFORE THE COMPLETION
OF THE INVESTIGATION ?

IV
WHETHER THE ESTABLISHMENT OF DSPE/CBI AS POLICE FORCE IS
CONTRARY TO CONSTITUTIONAL PHILOSOPHY OF DISTRIBUTION
OF POWER BETWEEN CENTRE AND
STATE ?

MEMORIAL ON BEHALF OF THE PETITIONER


JUSTICE P.B.SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

V
WHETHER THE ROLE DEFINED AND POWERS CONFERRED ON CBI
UNDER THE DSPE ACT, 1946 ARE
CONSTITUTIONALLY VALID ?

SUMMARY OF PLEADINGS

1.WHETHER THE ARREST OF MR. RAWAL KUMAR BY THE CBI


VIOLATES THE DUE PROCESS OF
LAW ?

It is most respectfully submitted that the arrest of Mr. Rawal Kumar by the
CBI violates the Due Process Of Law. Due process means just, fair and
not arbitrary The expression “Due Process of Law” has derived its meaning from
the word law of land used in section 39 of Magna Carta of 1215 . The Due
Process development in India is enriched by mainly two principle reasons -(1) The
concept of procedure established by law under Article 21 is required to be just ,
fair and reasonable because of the interactions of Article 14,19 &21.

(2)Interrelationship among Articles 20 , 21 & 22 as corollary of development


under Article 21 have furthered this phenomenon to a considerable extent . Due
process of law doctrine not only checks if the law made is just , fair and not
arbitrary but also whether it is violative of Art21.Under Due Process , it is the
legal requirement that the state must respect all the legal rights that are owed to a
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JUSTICE P.B.SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

person and the laws that state enact must confirm to law of land like - fairness ,
fundamental rights , liberty etc . It also gives the judiciary to access the
fundamental fairness , justice and liberty of any legislation .
In Indiana ,liberal interpretation is made by judiciary after 1978 and it has tried
to make the term procedure established by law as synonymous with due
process when it comes protecting individual rights .Maneka Gandhi vs Union
of India 1978 -SC held that “ Procedure established by law “ within the meaning
of Art 21 must be right , just, fair and not arbitrary ,fanciful or oppressive .
Otherwise it would be no procedure at all and the requirement of Art 21
would not be satisfied . Thus the procedure established by law acquired the same
significance in India as a due process of law in America . Hence , It is submitted
that the arrest of Petitioner by CBI violates the due process of law . CBI has
arrested the petitioner only on alert issued by INTERPOL and also it has not
followed any procedure or principles of arrest given under State laws and not
used their own presence of mind .

It is also submitted that cbi has not complied with Art 22 of constitution of
Indiana read with Sec 50 of CRPC ( hereinafter Criminal Procedure
Code)which is given asunder-
Art 22 of COI (Constitution Of India)- (1) No person who is arrested shall be
detained in custody without being informed, as soon as may be, of the grounds for
such arrest nor shall he be denied the right to consult, and to be defended by, a
legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced
before the nearest

magistrate within a period of twenty-four hours of such arrest excluding the


time necessary for the journey from the place of arrest to the court of the
magistrate and no such person shall be detained in custody beyond the said
period without the authority of a magistrate.

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JUSTICE P.B.SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

Sec 50 of CRPC(hereinafter Criminal Procedure Code)


Person arrested to be informed of grounds of arrest and of right to bail.(1)
Every police officer or other person arresting any person without warrant shall
forthwith communicate to him full particulars of the offence for which he is
arrested or other grounds for such arrest.
Dealing with Sec 41 (1) of the Cr.P.C. which provides for conditions
precedents for making arrest, the Supreme Court emphasized that for making
arrest, the police must be satisfied that all the conditions set out in the
provision are met viz.,:Arrest is necessary:a. to prevent such person from
committing any further offence; orb.for proper investigation of the case; orc.to
prevent destruction of tampering with evidence by the accused; or d.to prevent
such person from influencing the witnesses.

2. WHETHER THE CBI IS AUTHORISED TO ARREST THE


ACCUSED ON AN ALERT ISSUED BY INTERPOL
WITHOUT THE CONSENT OF STATE GOVERNMENT ?

It is most respectfully submitted that CBI (Hereinafter Central Bureau Of


Investigation) is not authorized to arrest the accused without the consent of
State Government on an alert issued by INTERPOL , Because CBI doesn't
have legal authority to take cognizance of cases in Mahayana and it started Suo
Moto Investigation . In the present case , CBI does not have competence to deal
with a

matter .Section 6 of DSPE ( hereinafter Delhi Special Police Establishment Act


) 1946 ,“ Nothing contained in section 5 shall be deemed to enable any
member of DSPE to exercise powers and jurisdiction in any area ( a state,not
being union territory or railway area ) , without the consent of government
of that state .
Section 6 explained However the CBI doesn't have power to investigate the
case within the jurisdiction of a state but DSPE Act allows the CBI to
investigate the offenses within the jurisdiction of the state with the consent of
that state .

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JUSTICE P.B.SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

Bhavesh Jayanti Lakhani vs. State of Maharashtra and others, 2009It was
held that CBI having been constituted in terms of provisions of DSPE Act
,1946 and having regard to limitations of it's Powers contained therein , It
couldn't exercise its jurisdiction within the territories of the state without its
concern .CBI has no jurisdiction of surveillance in terms of the Red corner notice or
Yellow corner

notice issued by INTERPOL or otherwise .CBI being a creature of the statute


must be held to be bound by the provisions of DSPE Act and can not be in a suit
generis capacity .CBI having a limited territorial jurisdiction, it's services
cannot be used outside its territorial framework.

3.WHETHER THE GENERAL CONSENT GIVEN BY THE STATE


GOVERNMENT TO CBI FOR INVESTIGATION OF A
PARTICULAR CRIME CAN BE REVOKED BEFORE
THE COMPLETION OF THE INVESTIGATION ?

Yes, It is most respectfully submitted that the general consent given by the
State Government to CBI (Hereinafter Central Bureau Of Investigation)for
investigation of a particular crime can be revoked before the completion of the
investigation .Wherefore the state enjoys ample power to withdraw the consent
within the statute.

The Andhra Pradesh Government has withdrawn consent given to CBI to


exercise its authority in the state. Following this the West Bengal Government
also withdrew the general consent given. Both the state said that they have lost
faith in cbi in the backdrop of its turmoil marked by the open war among the
agency's top officers.

Also there is a provision under the Act which empowers the state cabinets to
take back the CBI's investigation into any criminal case and can set up its own
probe / agency to deal with the matter. Also CBI cannot on its own decide to

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JUSTICE P.B.SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

probe into offences outside Delhi.Also it is to be noted my lordship that if Sec 6


of DSPE(Delhi Special Police Establishment Act)1946 allows a state to grant
consent it can also revoke the same when it thinks fit. The state is the Guardian
of the people's welfare and national security, being cognizant of the ground
realities where situation demands, the state should be deemed to have as a
corollary the necessary power to withdraw consent initially given despite the
progress of the investigation commenced and be empowered to exercise its
powers appropriately.Hence, consent once given can be withdrawn if the state
thinks fit so.

P.T.O.

4.WHETHER THE ESTABLISHMENT OF DSPE/ CBI AS POLICE


FORCE IS CONTRARY TO CONSTITUTIONAL PHILOSOPHY
OF DISTRIBUTION OF POWER BETWEEN
CENTRE AND STATE?

It is respectfully submitted that the establishment of DSPE Act/CBI as police


force is glaring to the Constitutional scheme of distribution of powers
between centre and states.It is submitted that Delhi Special Police
Establishment Act, 1946 (in short, 'the DSPE Act, 1946') is ultra vires the
Constitution, for, it offends, Article 372 of the Constitution inasmuch as
Parliament is not competent to make law on police for whole of India and it is
only a State legislature which can make, or could have made, law, on police

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by taking resort to Entry No.2 in the State List (List II). Thus, the DSPE Act, 1946,
cannot continue anymore inasmuch as its continuance violates the basic
Constitutional scheme.

5 WHETHER THE ROLE DEFINED AND POWERS CONFERRED ON


CBI UNDER DSPE ACT , 1946 ARE
CONSTITUTIONALLY VALID ?

It is humbly submitted that role defined and powers conferred on CBI under
DSPE Act , 1946 are not Constitutionally valid . Because CBI is not considered as
police in the Constitution.Parliament, too, is competent to make law on any of
the subjects/entries mentioned in List-II, yet, such laws can be made only for
Union Territories inasmuch as these territories do not have their own legislature and
according to Article 239 of the Constitution of India, the laws, enacted by
Parliament for Union Territories, are to be administered through an
administrator. It is submitted that the power to make laws is one thing and the
administration of those laws is quite another and it is not vice versa. Though
Parliament may make law, for Union Territories, on the State subjects, the fact
remains that the administration of these laws has to be through an administrator
appointed under Article 239 and not by the Central Government.
Navendra Kumar vs. Union of India and others, 2013In very landmark
decision of Guwahati High Court, it has been held that the very process of
setting up the Central Bureau of Investigation (CBI) was invalid and
unconstitutional. Although almost all have criticized this decision of Guwahati
High Court yet it is neither absurd nor an uncalled one. Parliamentary oversight of
any law enforcement agency is the core requirement under Indian Constitution.
However, our intelligence agencies and many law enforcement agencies,
including CBI, are not governed by any sort of parliamentary oversight. Even
CBI is well aware of this ground reality. The Draft Central Bureau of
Investigation Act, 2010 was

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suggested by CBI but the same could not see the light of the day. CBI’s case is
a political fiasco that has arisen due to the PMO indifference.

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MEMORIAL ON BEHALF OF THE PETITIONER


JUSTICE P.B.SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

P.T.O

ARGUMENTS ADVANCED

1.WHETHER THE ARREST OF MR. RAWAL KUMAR BY THE CBI


VIOLATES THE DUE PROCESS OF
LAW ?
It is most respectfully submitted that, yes the arrest of Mr Rawal Kumar (the
petitioner) by the CBI violates due process of law The expression Due
Process of Lawhas derived its meaning from the word law of land used in
section 39 of Magna Carta of 1215 . The Due Process in the common law system is
shaped and nourished by customary practice . The Due Process development in
India is enriched by mainly two principle reasons -
(1) The concept of procedure established by law under Article 21 is required to
be just , fair and reasonable because of the interactions of Articles 14 , 19 &21 .
(2) Interrelationship among Articles 20 , 21 &22 as corollary of development
under Article 21 have furthered this phenomenon to a considerable extent .
Regarding the first reason , The Constitution Makers preferred neutral phrase
Procedure established by law in Art 21 for the protection of life and personal

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JUSTICE P.B.SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

liberty of persons with a clear intention to avoid the possible judicial


vicissitudes pertaining to due process of law .
Due process of law doctrine not only checks if there is a law to deprive the life
and personal liberty of a person, but also see if the law made is just , fair and not
arbitrary .
Under Due Process , it is the legal requirement that the state must respect all the
legal rights that are owed to a person and the laws that state enact must confirm to
law of land like - fairness , fundamental rights , liberty etc . It also gives the
judiciary to access the fundamental fairness , justice and liberty of any
legislation .
Due process of law= Procedure established by law + Procedure should be fair
, just and not arbitrary.
In Indiana ,liberal interpretation is made by judiciary after 1978 and it has tried
to make the term procedure established by law as synonymous with due
process when it comes protecting individual rights .
Maneka Gandhi vs Union of India 1978 - SC held that Procedure
established by law within the meaning of Art 21 must be right , just, fair and
not arbitrary ,fanciful or oppressive . Otherwise it would be no procedure at
all and the requirement of Art 21 would not be satisfied . Thus the

procedure established by law acquired the same significance in India as a due


process of law in America .
Hence , It is submitted that the arrest of Petitioner by CBI violates the due
process of law . CBI has arrested the petitioner only on alert issued by
INTERPOL and also it has not followed any procedure or principles of arrest
given under State laws and not used their own presence of mind .

The SupremeCourt of India in its recent judgment of Arnesh Kumarvs.State


of Biharand others (2014 )8 SCC 273 ruled on the principles for making
arrest and detention under the Code of Criminal Procedure, 1973 ("Cr.P.C.").
The Supreme Court, in its Ruling, has issued certain directions to be followed by

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JUSTICE P.B.SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

the police authorities and the Magistrates while making arrest and/or authorizing
detention of an accused.
The Supreme Court, in its Ruling, emphasized on the need for caution while
exercising the drastic power of arrest by the police and also by the
magistrate while authorizing detention of accused. Citing statistics to
demonstrate the misuse of the power of arrest by the police authorities, the Supreme
Court proceeded to set out certain objective criteria to be applied before
making arrest under the Cr.P.C.
The Supreme Court held that no arrest should be made only because the
offence is non-bailable and cognizable. Neither should arrest be made in a
routine, casual and cavalier manner or on a mere allegation of commission of
an offence made against a person. Arrest should only be made after reasonable
satisfaction reached after due investigation as to the genuineness of the allegation.
It is also submitted that cbi has not complied with Art 22 of constitution of
Indiana read with Sec 50 of CRPC ( hereinafter Criminal Procedure Code)which
is given asunder-
Art 22 of COI (Constitution Of India)- (1) No person who is arrested shall be
detained in custody without being informed, as soon as may be, of the grounds for
such arrest nor shall he be denied the right to consult, and to be defended by, a
legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced
before the nearest magistrate within a period of twenty-four hours of such arrest
excluding the time necessary for the journey from the place of arrest to the
court of the magistrate and no such person shall be detained in custody beyond
the said period without the authority of a magistrate.
As held in the case of Swami Hariharanand Saraswati vs Jailer I/C Dist.
Varanasi, 1954,the arrested person must be produced before another magistrate
within 24 hours, otherwise his detention will be illegal.

In Hari Kishan vs State of Maharashtra 1962, SCheld that the grounds of


arrest must be communicated to the person in the language that he understands

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otherwise it would not amount to sufficient compliance of the constitutional


requirement.

Sec 50 of CRPC(hereinafter Criminal Procedure Code)


Person arrested to be informed of grounds of arrest and of right to bail.(1)
Every police officer or other person arresting any person without warrant shall
forthwith communicate to him full particulars of the offence for which he is
arrested or other grounds for such arrest.

Dealing with Section 41 (1) of the Cr.P.C. which provides for conditions
precedents for making arrest, the Supreme Court emphasized that for making
arrest, the police must be satisfied that all the conditions set out in the
provision are met viz.,:Arrest is necessary:
a. to prevent such person from committing any further offence; or
b.for proper investigation of the case; or
c.to prevent destruction of tampering with evidence by the accused; or
d.to prevent such person from influencing the witnesses.

In light of the above, the Supreme Court has issued the following directions to
all the State Governments:-
a. To instruct the police officers to not mechanically arrest the accused under
Section 498A of I.P.C. without satisfying themselves that the conditions of
arrest are met;
b. All police officers to be provided with the check-list of condition precedents
prescribed under Section 41 of Cr.P.C., to be duly filed and forwarded to the
Magistrate while producing the accused for further detention;
c. The Magistrate shall then peruse the report provided by the police officer and
only after recording its satisfaction in writing, may authorize detention;
d. The decision to not arrest the accused should be forwarded to the Magistrate
within two weeks from the date of institution of the case, the period may be
extended by the Superintendent of police for reasons to be recorded in writing;

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e. The notice of appearance in terms of Section 41 A Cr.P.C. should be served


on the accused within two weeks from the date of institution of the case, the
same may be extended by the Superintendent of
police for reasons to be recorded in writing.f. Failure to comply with the
directives set out above may render police officers/Magistrates liable for
departmental action and proceedings for contempt of court to be instituted
before the High Court having territorial jurisdiction.
The Constitution of Indiana have recognized many basic human rights as
fundamental rights and has place in Part lll of Constitution of Indiana and the
same cannot be violated.

2 . WHETHER THE CBI IS AUTHORISED TO ARREST THE


ACCUSED ON AN ALERT ISSUED BY INTERPOL
WITHOUT THE CONSENT OF STATE GOVERNMENT?
It is most respectfully submitted that CBI ( Hereinafter Central Bureau Of
Investigation) is not authorized to arrest the accused without the consent of
State Government on an alert issued by
INTERPOL , Because CBI doesn't have legal authority to take cognizance of
cases in Mahayana and it started Suo Moto Investigation . In the present case ,
CBI does not have competence to deal with a matter .
The reference of this point is given in Sec 6 of DSPE Act ( Hereinafter Delhi
Special Police Establishment Act) 1946 which is as follows -
Section 6 of DSPE Act 1946 ,Nothing contained in section 5 shall be deemed to
enable any member of DSPE to exercise powers and jurisdiction in any area ( a
state,not being union territory or railway area ) , without the consent of
government of that state. Section 6 explained-However the CBI doesn't have
power to investigate the case within the jurisdiction of a state but DSPE Act allows
the CBI to investigate the offenses within the jurisdiction of the state with the
consent of that state .
CBI only has been given concurrent power to investigate certain notified
offences in union territories suo moto not the state .

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CBI has power to arrest person for extradition treaty only, hence, Interpol
issue notices.Some of them are mentioned below-
NOTICES:-
Notices are international alerts used by police to communicate information
about crimes , wanted persons and threats . INTERPOL uses eight types of
notices -
a) Red corner notice
b) Blue corner notice

c) Green corner notice


d) Yellow corner notice
e) Black corner notice
f) Orange corner notice
g) Purple corner notice
Seven are these notices are colour - coded by their functions .

Most well-known is the Red corner notice which is the most relevant
instrument to an international
arrest warrant . Red corner notice is an international alert to seek the location
and arrest of a wanted
person for purpose of extradition . Red notices informs law enforcement officer
in one country that those of another country are seeking to the arrest of
particular person . Hence , INTERPOL can make arrest for extradition treaty .
Bhavesh Jayanti Lakhani vs. State of Maharashtra and others, 2009
It was held that CBI having been constituted in terms of provisions of DSPE
Act ,1946 and having regard to limitations of it's Powers contained therein
, It couldn't exercise its jurisdiction within the territories of the state without
its concern .

CBI has no jurisdiction of surveillance in terms of the Red corner notice or


Yellow corner notice issued by INTERPOL or otherwise .
CBI being a creature of the statute must be held to be bound by the provisions of
DSPE Act and can not be in a suit generis capacity .

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CBI having a limited territorial jurisdiction, it's services cannot be used outside
its territorial framework.

3.WHETHER THE GENERAL CONSENT GIVEN BY THE STATE


GOVERNMENT TO CBI FOR INVESTIGATION OF A PARTICULAR
CRIME CAN BE REVOKED BEFORE THE
COMPLETION OF THE INVESTIGATION ?
Yes, It is most respectfully submitted that the general consent given by the
State Government to CBI (Hereinafter Central Bureau Of Investigation)for
investigation of a particular crime can be revoked before the completion of the
investigation .Wherefore the state enjoys ample power to withdraw the consent
within the statute.

Rawal Kumar was arrested on 26th August 2017, as said the state has given its
general consent but has withdrawn it on 1st August 2017. Hence, CBI cannot
continue further investigation after withdrawal of the consent.
The Andhra Pradesh Government has withdrawn consent given to CBI to
exercise its authority in the state. Following this the West Bengal Government
also withdrew the general consent given. Both the state said that they have lost
faith in CBI in the backdrop of its turmoil marked by the open war among the
agency's top officers.
Also there is a provision under the Act which empowers the state cabinets to
take back the CBI's investigation into any criminal case and can set up its own
probe / agency to deal with the matter. Also CBI cannot on its own decide to
probe into offences outside Delhi.
In Spite of this, the CBI has to seek permission for consent from the courts
when the state has refused to give consent or withdrawn the consent and when a
major probe requires conducting investigation . Hence, it can be seen that CBI
has not applied to any court for grant of consent.
Hence, consent once given can be withdrawn if the state thinks fit so.

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The state is the Guardian of the people's welfare and national security, being
cognizant of the ground realities where situation demands, the state should be
deemed to have as a corollary the necessary power to withdraw consent
initially given despite the progress of the investigation commenced and be
empowered to exercise its powers appropriately.

4.WHETHER THE ESTABLISHMENT OF DSPE ACT/CBI AS


POLICE FORCE IS CONTRARY TO CONSTITUTIONAL
PHILOSOPHY OF DISTRIBUTION OF POWER
BETWEEN CENTRE AND STATE ?
It is respectfully submitted that the establishment of DSPE Act/CBI as police
force is glaring to the Constitutional scheme of distribution of powers
between centre and states.
It is submitted that Delhi Special Police Establishment Act, 1946 (in short, 'the
DSPE Act, 1946') is ultra vires the Constitution, for, it offends, Article 372 of the
Constitution in as much as Parliament is not competent to make law on police
for whole of India and it is only a State legislature which can make, or could
have made, law, on police under Entry No.2 in the State List (List II). Thus, the
DSPE Act, 1946, cannot continue anymore in as much as its continuance violates
the basic Constitutional scheme.

It is the submission of the learned counsel for the petitioner that at best, the CBI
may be treated to have been constituted by the Central Government under
Entry 8 of the List-I (Union List); but there is no correlation between the Entry 8
of List I and Entry 2 of List II inasmuch as Entry 8 of List I does not, in the
light of the Constituent Assembly Debates, permit 'investigation' of a crime in the
manner as is, ordinarily, done by the police; whereas Entry 2 of List II permits
enactment of laws relating to police. According to the learned counsel for
petitioner, both these entries are separate and distinct from each other and that the
framers of the Constitution were well aware of the fact that they were enabling the
Centre and State to create two separate authorities, one, which would be

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covered by Entry 8 of List I, and the other, which would be covered by Entry 2 of
List II, and while 'investigation', under Entry 2 of List II, would mean an
'investigation' preparatory to the filing of a police report, commonly called
charge-sheet or final report, under Section 173 (2) (i) of the Cr.PC, the other
'investigation' would be in the form of merely an enquiry and not an
investigation, which is conducted by a police officer under the Cr.PC. Support
for these submissions, as mentioned hereinbefore, is sought to be derived by from
the debates of the Constituent Assembly.
There are three reasons reiterated by Guwahati High Court which proves
that DSPE Act 1946, ultra vires the Constitution of India, the first reason being
that an existing law, or a law, which had been in force, immediately preceding
the commencement of the Constitution of India, would be inoperative and
invalid if it, otherwise, violates any of the fundamental rights, particularly, life and
liberty of a person. The second reason, is that the Parliament does not have
legislative competence to enact law on police inasmuch as police is a State
subject, covered by Entry No.2 of List II (State list), and it is, therefore,
the State Legislature alone, which is competent to enact law on police. Third
ground, assailing the validity of the DSPE Act, 1946, is that it extends, in
terms of Section 1 of the DSPE Act, 1946, to the whole of India; whereas, no
law, made on police, can extend to the whole of India.

The High Court observed that CBI was constituted through a resolution issued
by the Union ministry of home affairs on April 1, 1963. The creation of the CBI
through the resolution, which was signed by then secretary to the Union
Government V. Viswanathan, was held to be as ultra vires by the Court. The
Court also set aside the impugned resolution. As a result of that, court declared
that, the CBI ceased to be a constitutionally valid police force empowered to
investigate crimes and all CBI cases have become void ab initio.

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MEMORIAL ON BEHALF OF THE PETITIONER


JUSTICE P.B.SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

The High Court was of the view that a police force with powers to investigate
crime cannot be constituted by merely issuing an executive order. For that
purpose, an act shall have to be passed by the
Legislature. This is a valid stand taken by the Court and this situation could
have been avoided if proper law for CBI was drafted in time. There is nothing
wrong per se with CBI but its constitution is highly controversial and debatable
and susceptible to challenge on touchstone of the constitutional scheme

5. WHETHER THE ROLE DEFINED AND POWERS CONFERRED


ON CBI UNDER DSPE ACT , 1946 ARE
CONSTITUTIONALLY VALID ?

It is humbly submitted that role defined and powers conferred on CBI under
DSPE Act , 1946 are not Constitutionally valid . Because CBI is not considered as
police in the Constitution .
In the absence of any law givinging the birth of the CBI, the exercise of powers
of police, by the said rganization, such as, registration of First Information
Reports, arrests of persons, 'investigation' of crimes, filing of charge sheets and
prosecution of the offenders cannot be permitted, for, allowing the CBI to do so
would offend the fundamental rights guaranteed under Article 21 of the
Constitution of India, which expressly provides that no person shall be deprived
of his life and liberty except according to the procedure established by law.
Parliament, too, is competent to make law on any of the subjects/entries
mentioned in List-II, yet, such laws can be made only for Union Territories
inasmuch as these territories do not have their own legislature and according to
Article 239 of the Constitution of India, the laws, enacted by Parliament for
Union Territories, are to be administered through an administrator. It is
submitted that the power to make laws is one thing and the administration of
those laws is quite another and it is not vice versa. Though Parliament may make
law, for Union Territories, on the State subjects, the fact remains that the

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MEMORIAL ON BEHALF OF THE PETITIONER


JUSTICE P.B.SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

administration of these laws has to be through an administrator appointed


under Article 239 and not by the Central Government.
Navendra Kumar vs.Union of India and others, 2013 In very landmark
decision of Guwahati High Court, it has been held that the very process of
setting up the Central Bureau of Investigation (CBI) was invalid and
unconstitutional. Although almost all have criticized this decision of Guwahati
High Court yet it is neither absurd nor an uncalled one.

Parliamentary oversight of any law enforcement agency is the core requirement


under Indian Constitution. However, our intelligence agencies and many law
enforcement agencies, including CBI, are not governed by any sort of
parliamentary oversight. Even CBI is well aware of this ground reality. The
Draft Central Bureau of Investigation Act, 2010 was suggested by CBI but the same
could not see the light of the day. CBI’s case is a political fiasco that has arisen
due to the PMO indifference.
Even the Intelligence Services (Powers and Regulation) Bill, 2011 failed to
materialize and till now our intelligence agencies are not governed by any law.
In fact, intelligence agencies are vehemently
opposing the proposed Right to Privacy Bill 2013 so that they remain
ungoverned and unaccountable in every possible sense.
Indiana has already launched illegal and unconstitutional projects like Aadhar,
central monitoring system, national intelligence grid (Nat grid), etc. without
any legal framework and parliamentary oversight. Now when we have a
chance to bring some sanity among the chaos created by the intelligence
infrastructure of India, the intelligence agencies have pulled their sleeves to stall the
proposed privacy bill.
CBI has been investigating offences and prosecuting alleged offenders in the
garb of being an organization under the DSPE Act, 1946. It has already been
indicated that the impugned Resolution, dated 01.04.1963, is not, strictly
speaking, an executive action of the Union within the meaning of Article
73 inasmuch as the executive instructions, embodied in the impugned Resolution,
were not the decision of the Union Cabinet nor were these executive
instructions assented to by the President. Therefore, this Resolution, can, at

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MEMORIAL ON BEHALF OF THE PETITIONER


JUSTICE P.B.SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

best, be regarded as departmental instructions, which cannot be termed as


law within the meaning of Article 13(3) (a) nor can the executive instructions, can
be regarded to fall within the expression, "procedure established by law", as
envisaged by Article 21 of the Constitution.
Thus, the actions of the CBI, in registering a case, arresting a person as an
offender, conducting search and seizure, prosecuting an accused, etc., offend
Article 21 of the Constitution and are, therefore, liable to be struck down as
unconstitutional.

PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED , ARGUMENTS


ADVANCED AND AUTHORITIES CITED , IT IS HUMBLY PRAYED
THAT THIS HON'BLE COURT MAY BE

PLEASED,

1. To Hold, the conviction of Mr. Rawal Kumar being contrary to process of


law and must be set aside.

2. To Award, relief to Petitioner Rawal Kumar for illegal detention.

3.To Declare,CBI has no authority to deal with this matter.

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MEMORIAL ON BEHALF OF THE PETITIONER


JUSTICE P.B.SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

AND PASS ANY OTHER ORDER, DIRECTIONS OR RELIEF THAT THIS


HON'BLE COURT MAY SEEM FIT IN THE INTEREST OF justice, equity
and good conscience.

All of which is
humbly prayed,

133,

Counsels for the


Petitioner.

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MEMORIAL ON BEHALF OF THE PETITIONER