IN THE HON’BLE HIGH COURT OF VISHAKAGIRI

CRIMINAL WRIT PETITION NO. OF 2024

In the Matter of,

ANSH … PETITIONER

VS.

STATE OF VISHAKAGIRI & Ors. … RESPONDENTS

Criminal Writ Petition under Article 226 of the Constitution of

Siddharama Puram

MEMORIAL ON BEHALF OF THE PETITIONER

COUNSEL FOR PETITIONER

 TABLE OF CONTENTS

Sr.No. Index Page No.

1. List of Abbreviations 2

2. Index of Authorities 3

3. Statement of Jurisdiction 4

4. Statement of Facts 5-6

5. Issues Raised 7

6. Summary of Arguments 8-9

7. Arguments Advanced

• Whether the enactment of the Bharatiya Nyaya Sanhita, 2023

10-13
constitutionally valid?
14-16
• Whether the extension of police custody beyond 15 days is

permissible in the present case?

17-20
• Whether an FIR can be lawfully registered under Sections 64,

69, 64(2)(m), 87, and 351 of the Bharatiya Nyaya Sanhita,

21-24
2023 in the instant case?

25-29
• Whether the FIR in the present case is liable to be quashed?

• Whether the accused in the present case is entitled to be

released on bail?

8. Prayer 30
 LIST OF ABBREVIATIONS

N.G.O. Non-Governmental Organisation

U.P. Uttar Pradesh
Ors. Others
CPC Code of Civil Procedure
AIR All India Reporter
SCR Supreme Court Reporter
Art. Article
SC Supreme Court
ibid ibidem
SCC Supreme Court Cases
Cr.P.C. Code of Criminal Procedure
IPC Indian Penal Code
i.e. That is
Cr.L.J. Criminal Law Journal
BNS Bharatiya Nyaya Sanhita, 2023
BNSS Bhartiya Nagrik Suraksha Sanhita 2023
HC High Court

INDEX OF AUTHORITIES

List of cases referred

• Lalita Kumari v. the State of UP [2013] 14 S.C.R. 713

• Chaganti Satyanarayana and others v. State of Andhra Pradesh, [1986] 3 S.C.C.141

• DK Basu vs. State of West Bengal (1997) AIR 1997 SUPREME COURT 610

• Vijay Vimal v. Union of India Civil Appeal No. 233 of 2021 of SC.
 • Shreya Singhal v. Union of India, (2015) 5 SCC 1

• State of Haryana and Ors v. Ch. Bhajan Lal and Ors 1992 AIR 604

• Jai Prakash Singh v State of Bihar (2012) 2 SCC 565.

• Hussainaira Khatoon v State of Bihar, 1979 AIR 1369.

• Siddharam Sattlingapp.a Mhetre V. State of Maharashtra (2011) SCC 694

• Akshay Manoj Jaisinghani v. The State of Maharashtra; Bail Application No.

2221/2016

• Arif Iqbal @ Imran v. State 2009 SCC Online Del 356

• Shiva Shankar v. State of Karnataka; Crl. Appeal No. 504/2018

• Bhushan Malik v. State (Government of NCT of Delhi); Bail Application no.

1545/2018; Delhi High Court

• Harish Kumar v. State 2010 (4) JCC 2371

• Gaurav s/o Ravi Wankhede v. State of Maharashtra Criminal Application [APL]

NO.45 OF 2023 Bom HC

List of statutes referred

• The Constitution of India
• The Indian Penal Code, 1860
• The Code of Criminal Procedure, 1973
• Bharatiya Nyaya Sanhita, 2023

• Bhartiya Nagrik Suraksha Sanhita, 2023

Internet Sources
• indiankanoon.com
• casemine.com
• Ipleaders
• sci.gov.in

STATEMENT OF JURISDICTION
It is humbly submitted that the Petitioners have appeared before this Hon’ble High Court by
filing a Writ Petition under Article 226 of the Constitution of India.

226. Power of High Courts to issue certain writs

Notwithstanding anything in article 32 every High Court shall have powers, throughout the
territories in relation to which it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories’ directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrantor
and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose.

STATEMENT OF FACTS
Ansh and Yamika met in college in 2020 and started dating after Ansh proposed on New
Year's Eve 2022. They engaged in consensual physical intimacy and stayed in touch after
graduation. However, their relationship faced challenges when Yamika's father, a high-
ranking government official, disapproved of their union.

Yamika grew impatient and threatened self-harm and a rape complaint if Ansh didn't marry
her soon. Despite this, they got engaged on June 15, 2024. However, Ansh attempted to
cancel the wedding on June 30, 2024, after Yamika's father made offensive remarks.

Yamika then filed a police complaint (FIR) alleging Ansh deceived her into sexual relations
without marital intentions. Ansh was arrested and initially held until July 8, 2024. He claims
the FIR is false and malicious, fabricated by Yamika's influential father to coerce him into
marriage.

During investigation, the police found obscene photos on Ansh's computer and extended his
custody for further questioning. Ansh argues this evidence is fabricated and the extended
custody is harassment. He asserts the entire case misuses the legal system to force him into
marriage.
 ISSUES RAISED

ISSUE NO.1

Whether the enactment of the Bharatiya Nyaya Sanhita, 2023 constitutionally valid?

ISSUE NO.2

Whether the extension of police custody beyond 15 days is permissible in the present case?

ISSUE NO.3

Whether an FIR can be lawfully registered under Sections 64, 69, 64(2)(m), 87, and 351 of
the Bharatiya Nyaya Sanhita, 2023 in the instant case?

ISSUE NO.4

Whether the FIR in the present case is liable to be quashed?

ISSUE NO.5

Whether the accused in the present case is entitled to be released on bail?

 SUMMARY OF ARGUMENTS

ISSUE NO.1

The Bharatiya Nyaya Sanhita (BNS) enactment on July 1, 2024, has sparked controversy due
to its hasty passage and potential infringement on fundamental rights. Critics argue that the
lawmaking process lacked thorough deliberation and procedural safeguards, violating
democratic principles. Despite concerns about inadequate examination and ignored dissenting
voices, the bills were expedited, potentially compromising citizens' interests and access to
legal resources

Key Concerns:

- Lack of Debate and Examination: The bills were not thoroughly debated or examined,
leading to potential flaws and unintended consequences.

- Infringement on Fundamental Rights: Section 69 of BNS, 2023, allegedly targets

individuals without clear evidence or due process, violating Articles 14, 15(3), and 21 of the
Constitution, which guarantee equality, non-discrimination, and protection of life and
personal liberty ¹ ³.
- Negative Impact on Justice and Fairness: The hasty enactment may compromise justice,
procedural fairness, and access to legal resources.

Constitutional Violations:

The BNS allegedly contravenes Articles 14 and 19 of the Constitution, which ensure equality
before the law and protection of certain rights ¹ ². By ignoring dissenting voices and
expediting the legislative process, the enactment of BNS raises concerns about the
undermining of democratic lawmaking principles.

Overall, the enactment of BNS has sparked significant controversy, with critics arguing that it
may infringe on fundamental rights and compromise justice and fairness. .: The enactment of
the Bharatiya Nyaya Sanhita (BNS) on July 1, 2024, lacked adequate deliberation and
procedural safeguards, undermining democratic lawmaking principles and is blatantly
unconstitutional as it is against Articles 14 and 19 of the Constitution. That, even though
Concerns were raised that the bills were not thoroughly examined or debated, with dissenting
voices ignored. This expedited process failed to ensure that the laws were meticulously
scrutinized and aligned with citizens' interests., the new criminal laws are criticized for their
hasty enactment, lack of comprehensive debate, and potential negative impacts on justice,
procedural fairness, and access to legal resources. Section 69 of BNS, 2023 targets
individuals without clear evidence

ISSUE NO.2

The police can hold Ansh for a maximum of 15 days, as per Section 187 of the Bharatiya
Nyaya Sanhita (BNS). Ansh was arrested on July 2, 2024, and initially held until July 8,
2024. The police sought a 7-day extension, leaving only 8 additional days allowed. However,
the Magistrate granted 15 days, exceeding the allowed limit and contradicting Section 187.

ISSUE NO. 3

The FIR cannot be registered under the Bharatiya Nyaya Sanhita (BNS) because the incident
happened before the law came into effect. According to Article 20(1) of the Constitution, a
person can only be convicted under laws existing at the time of the incident. Since the
incident occurred before BNS enforcement, the FIR must be registered under the relevant
Indian Penal Code sections, not BNS.

ISSUE NO.4
The petitioner requests that the FIR be dismissed due to several reasons. Firstly, it was filed
in the wrong jurisdiction, as the relevant laws don't apply. Additionally, the FIR lacks
sufficient evidence to support the charges and was filed with malicious intent to harass or
intimidate. The allegations are also vague and don't specify the charges, violating the
principles of fair trial and due process.

Continuing the case would infringe on the petitioner's constitutional rights, including the right
to a fair trial and protection from arbitrary action. Quashing the FIR serves the public interest
by preventing misuse of the judicial process and reducing the legal system's burden. The
petitioner argues that the FIR should be dismissed due to its flaws and potential harm.

ISSUE NO.5

The petitioner's counsel argues that every individual is presumed innocent until proven guilty.
The petitioner, with no prior criminal record, has cooperated with law enforcement and is
unlikely to flee or re-offend. Continued detention may cause undue hardship, including job
loss, family disruption, and psychological impact, disproportionate to the alleged offense. The
offense relies heavily on unverified digital images, which can be easily altered. Granting bail
aligns with public interest by reducing prison overcrowding and upholding the presumption
of innocence.

ARGUMENTS ADVANCED

I. Whether the enactment of the Bharatiya Nyaya Sanhita, 2023 is constitutionally valid.

The counsel for the petitioner has raised significant concerns regarding the passage of India's
new criminal laws, specifically the Bharatiya Nyaya Sanhita (BNS) and Bharatiya Nagarik
Suraksha Sanhita (BNSS). These concerns cast doubt on the legitimacy and constitutionality
of the enactment, potentially rendering it inapplicable.

Lack of Debate and Opposition Participation

The counsel argues that the laws were passed without adequate discussion and consideration.
This is particularly concerning, as parliamentary debate is a fundamental aspect of
democratic lawmaking. The absence of meaningful debate and opposition participation
undermines the democratic process and may result in laws that do not accurately reflect the
needs and concerns of citizens.

Sedition Laws Rephrased and Strengthened

The new laws rephrase and strengthen sedition laws, specifically Section 152 of the BNS.
This raises concerns about the potential for abuse and suppression of dissenting voices. The
rephrased law introduces new offenses related to sovereignty and integrity, which may be
used to target individuals exercising their right to free speech.

Police Discretion in Registering FIRs

The laws grant police discretion in registering First Information Reports (FIRs). This may
lead to arbitrary decisions and potential marginalization of vulnerable sections of society.
Previously, the Supreme Court had ruled that police must register FIRs in cases of serious
crimes. The new laws undermine this safeguard.

Potential for Arbitrary Detention and Abuse of Power

Section 187 of the BNS allows police to request custody for up to 15 days, even if the
accused qualifies for bail. This raises concerns about prolonged detention and potential
misuse of power. The accused's right to default bail, previously guaranteed after 60 or 90
days, is compromised.

Unconstitutional Provisions

Section 69 of the BNS is particularly contentious, as it:

1. Violates Equality: Presumes only men can make deceitful promises, implying women lack
agency in sexual matters.

2. Reverses Burden of Proof: Places the burden on the accused to prove innocence.

3.Lacks Clarity: Vague terms like "deceitful means" and "suppressing identity" may lead to
arbitrary enforcement.

4. Discriminates: Fails to recognize complexities of modern relationships and sexual

autonomy, potentially harming LGBTQ+ individuals.

These concerns suggest that the enactment of the Bharatiya Nyaya Sanhita, 2023, may be
constitutionally invalid. The counsel argues that the laws' haste and lack of consideration
have resulted in provisions that infringe upon fundamental rights and principles of
democracy.

Implications

If the counsel's arguments are upheld, the enactment may be deemed inapplicable. This could:

1. Protect Individual Rights: Safeguard citizens from potentially abusive laws.

2. Uphold Democratic Principles: Ensure that laws are passed through a meaningful
democratic process.

3. Promote Accountability: Encourage lawmakers to carefully consider legislation.

Ultimately, the court's decision will have significant implications for India's criminal justice
system and the protection of individual rights.

II. Whether the extension of police custody beyond 15 days is permissible in the present
case?
The Counsel for the Petitioner strenuously contends that the prolongation of police custody
beyond 15 days is impermissible in the instant case. According to Section 187 of the
Bharatiya Nagarik Suraksha Sanhita (BNSS), the police having already utilized 7 days of
police custody, the Magistrate is empowered to grant only an additional 8 days, as the law
categorically prohibits custody beyond 15 days for any offense under the Bharatiya Nyaya
Sanhita (BNS).

The Counsel submits that the provisions of BNSS are pari materia with Section 167 of the
Code of Criminal Procedure (CrPC), and reliance is placed on the landmark judgment in
Chaganti Satyanarayana and others v. State of Andhra Pradesh ([1986] 3 SCC 141). The apex
court held that the period of 15 days prescribed under Section 167(2) provisos (a)(i) and (ii) is
to be computed from the date of remand, not the date of arrest under Section 57. Furthermore,
remand to police custody cannot exceed 15 days, and subsequent detention must be in
judicial custody.

Additionally, the Counsel invokes the DK Basu v. State of West Bengal ([1997]) judgment,
emphasizing the establishment of procedural safeguards and compensation for victims of
police abuse. The judgment underscored the global effort against torture and stipulated that
non-compliance with guidelines renders officials liable for departmental action and contempt
of court.

In the instant case, the Petitioner was arrested on July 2, 2024, and granted police custody for
7 days. Subsequent discovery of evidence led to a request for further police custody for 14
days, which was granted. The Counsel argues that this constitutes a gross abuse of law, as the
Petitioner was placed in police custody for nearly 22 days, violating the 15-day limit.

The Counsel asserts that continued detention beyond 15 days infringes upon the Petitioner's
constitutional right to personal liberty under Article 21, and that judicial oversight is essential
to prevent abuse of police power. Alternative measures, such as judicial custody, can ensure
the accused's appearance in court without infringing on their rights.

Therefore, the Counsel urges the Court to hold that the extension of police custody beyond 15
days is unlawful, unconstitutional, and liable to be set aside.
III. Whether an FIR can be lawfully registered under Sections 64, 69, 64(2)(m), 87, and
351 of the Bharatiya Nyaya Sanhita, 2023 in the instant case?

The Counsel for the Petitioner contends that the registration of the First Information Report
(FIR) under Sections 64, 69, 64(2)(m), 87, and 351 of the Bharatiya Nyaya Sanhita (BNS),
2023, is unlawful and bad in law. The cause of action arose on December 31, 2022, prior to
the enactment of the BNS, 2023.

The Counsel argues:

1. The provisions under which the FIR was registered are inapplicable, as they did not exist at
the time of the alleged offense.

2. The provisions are one-sided, favoring only the female gender, and violate Article 14
(Right to Equality) of the Indian Constitution.

3. Article 15(3), allowing special provisions for women and children, has been misinterpreted
and misimplemented, leading to discriminatory laws.

4. The principle of prospectivity, as derived from Article 20(1), prohibits the retroactive
application of laws.

5. The FIR violates the Petitioner's fundamental rights under Articles 15, 19(1)(a), and 21 of
the Indian Constitution.

The Counsel relies on landmark cases:

1. Vijay Vimal v. Union of India, emphasizing the protection of individual rights against
arbitrary state actions.

2. Shreya Singhal v. Union of India, establishing the importance of clear and specific laws to
protect freedom of expression.
Therefore, the Counsel urges that the FIR registered under the BNS, 2023, be quashed, as it is
unlawful and violates the Petitioner's fundamental rights.

IV Whether the FIR in the present case is liable to be quashed?

The Counsel for the Petitioner urges the Hon'ble Court to quash the First Information Report
(FIR) registered against Ansh, citing the following grounds:

1. Lack of prima facie case: Insufficient credible evidence supports the charges.

2. Settlement between parties: Malafide intentions and abuse of process.

3. Violation of fundamental rights: Articles 14, 19(1)(a), and 21 of the Indian Constitution.

4. No legal sanction for prosecution: Allegations do not constitute a criminal offense.

5. Factual innocence: New evidence irrefutably establishes Ansh's innocence.

The Counsel submits that:

- Yamika's allegations are frivolous, unsubstantiated, and patently false.

- Ansh and Yamika were in a consensual relationship for 2-3 years.

- Yamika's father made threats and lewd comments.

- Section 69 of the BNS, 2023, is misused as a weapon against Ansh.

Reliance is placed on:

- State of Haryana v. Ch. Bhajan Lal (1992 SCC (Cri.) 426)

- Gaurav s/o Ravi Wankhede v. State of Maharashtra (Criminal Application [APL] NO.45 OF
2023)

- Pramod Suryabhan Pawar v. State of Maharashtra & Anr. (2019) 9 SCC 608
- Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra (2019) AIR SC 327

The Counsel argues that:

- Continuing proceedings would be an abuse of process and cause undue harassment.

- The FIR and consequent proceedings should be quashed.

Therefore, the Counsel prays that the Hon'ble Court quash the impugned FIR and all
consequent proceedings against the petitioner.

V. Whether the accused in the present case entitled to be released on bail?

Counsel submits that the concept of rape is a grave and terrifying offense, and the
constitution makers have established laws to address this heinous crime. However, some
individuals exploit these laws as a means of revenge or to harm others' reputations. To
safeguard the innocent, the Constitution provides provisions for Bail and Anticipatory Bail
under Sections 438 and 439 of the Criminal Procedure Code.

When considering interim bail, courts evaluate various factors, including medical conditions
requiring urgent treatment, humanitarian considerations, and investigation delays. Recent
judgments illustrate the principles of interim bail, such as Prahlad Singh Bhati v. NCT, Delhi
(2001) and Sukhwant Singh & Ors v. State of Punjab (2009).

The Supreme Court has outlined factors for anticipatory bail in Siddharam Sattlingapp.a
Mhetre V. State of Maharashtra, including the nature and gravity of accusations, antecedents,
and possibility of fleeing. Other relevant cases include Akshay Manoj Jaisinghani v. The State
of Maharashtra, Arif Iqbal @ Imran v. State, and Shiva Shankar v. State of Karnataka.

In the instant case, Ansh and Yamika engaged in consensual sex, and a promise to marry later
denied cannot be considered rape. The accused has no criminal record, and the complainant
 relies on circumstantial evidence. The accused seeks bail, citing no danger of escape or harm
to society or the complainant.

The accused argues that Section 69 of BNS is inapplicable, as IPC provisions were applicable
at the time of the alleged act. This arrest violates fundamental rights, and bail should be
granted without delay. The complainant may seek civil remedies for breach of promise, as
IPC does not criminalize it. Granting bail will prevent irreparable harm and prejudice to the
accused.

PRAYER

THEREFORE, IN LIGHT OF THE FACTS STATED, ISSUES FRAMED, ARGUMENTS

ADVANCED, AUTHORITIES CITED AND PLEADINGS MADE, IT IS MOST HUMBLY
AND RESPECTFULLY PRAYED BEFORE THE HON’BLE HIGH COURT:

• To declare that the extension of police custody beyond 15 days, as bad in law and
deserves to be set aside.

• To cancel the FIR registered under Sections 64, 69, 64(2)(m), 87, and 351 of the
Bharatiya Nyaya Sanhita, 2023, and treat the same as untenable in law.

• To quash the FIR in the present case.

• To pass an order to release the petitioner on bail with or without sureties as the court
deems fit.

AND

Pass any other order it may deem fit in the interest of Justice, equity, and good conscience. All of
which is most humbly prayed.

Counsel on behalf of Petitioner.