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TEAM CODE:04

BEFORE THE HON’BLE HIGH COURT OF MEHULA

Case filed seeking an order under Article 226 of the constitution of Estancia

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER

In the matter of

BHAMANI FATHIMA………………………………………………………..PETITIONER

Vs

REPUBLIC OF ESTANCIA…………………………………………………RESPONDENT

Most respectfully submitted before the HON’ble Magistrate and companion judges of
High Court of mehula.

MEMORANDUM SUBMITTED ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

CONTENTS PAGE NUMBER

LIST OF ABBREVIATIONS 3

INDEX OF AUTHORITIES 4

STATEMENT OF JURISDICTION 5

STATEMENT OF FACTS 6

ISSUES RAISED 7

SUMMARY OF ARGUMENTS 8

ARGUMENTS ADVANCED 9

PRAYER 17
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LIST OF ABBREVIATIONS

ACTUAL TERM

All India Reporter AIR

Supreme Court Cases SCC

High Court HC

Supreme Court SC

Article Arc.

Section Sec.

Post meridian Pm

Doctor Dr.

Master Mr.
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INDEX OF AUTHORITIES

STATUTES REFERRED

1) Criminal Procedure Code, 1973

2) Constitution of India, 1950
3) Criminal Procedure (Identification) Act, 2022
4) Identification of Prisoners Act, 1920

WEBSITES REFERRED

1) Https//Indianlegalservices.com
2) https//Indiankanoon.org
3) www.casemine.com
4) https://blog.ipleaders.in
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STATEMENT OF JURISDICTION

It is most humbly and respectfully submitted that the Petitioner has approached this Hon’ble
High Court under Art. 226 of the Constitution of Estancia and accepts that this Hon’ble court has
the inherent jurisdiction, power, and authority to try, entertain and dispose off the present
petitions clubbed together by virtue of Art. 226 of The Constitution of Estancia.The petitioner
sets forth the facts and laws on which the claims are based.

Article 226, empowers the high courts to issue, to any person or authority, including the
government (in appropriate cases), directions, orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them.
The High Court is conferred with this power under Article 226 of the Constitution of Estancia for
enforcement of any of the fundamental rights conferred by part III of the Constitution or for any
other purpose
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STATEMENT OF FACTS

● Mrs. Bhamini Fathima is a full-time working wife who resides at “Sunshine Apartments”,
along with her husband Mr. Chandra who takes care of the house and their daughter. Due
to Mr.Chandra’s recent failure as an entrepreneur, Mrs. Bhamini Fathima takes it upon
herself to start full-time work to bring financial stability to their lives.

● Mrs. Bhamini Fathima works with She-Taxi company as a driver. In the due course of
time, Mrs. Bhamini Fathima has gained a lot of attention in the histogram platform
(social media) where she has around 50k followers. She has moulded herself into a
woman influencer as a lady taxi driver, who inspires many young girls and women of the
present generation. Her fame and beauty attracted many followers and at the same time
she gained a lot of hatred.

● On 18/10/2022, At 10:00am she was assigned to pick up Mr. Lucky Singh from the
airport, who by surprise turns out to be one of the followers of Mrs. Bhamini’s histogram
social media account.Mr. Lucky Singh conveyed his wishes and stated that he has
recently bought an apartment in the neighbourhood, which coincidentally happened to be
one of the apartments in Bhamini’s gated community.

● On 18/10/2022, at 4:00pm celebration started at Bhamini’s apartment. Mr.Lucky Singh

visited her apartment without any prior invite. Bhamini, was highly annoyed at Lucky's
eagerness to barge into her home when all she wants is to celebrate her anniversary with
her husband and daughter. On 18/10/2022, around 6:00 pm Mr. Lucky asked Bhamini to
help with carrying out an errand for him. Mrs. Bhamini agreed to help and informed Mr.
Lucky that she will drop him at the airport after offering her evening prayers.

● Meanwhile Mr.Lucky Singh ends up killing Mr. Chandra and his daughter cold-bloodedly
while Mrs.Bhamini was offering her prayers. He hides their body in a giant body bag and
hides it in the trunk of Bhamini’s car

● Bhamini comes back to find out that Chandra and her daughter are nowhere to be seen.
She files a missing person report, and soon The police found Chandra’s body in
Bhamini’s car trunk and suspected and arrested her.
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ISSUES RAISED

1. WHETHER THE CRIMINAL PROCEDURE(IDENTIFICATION) ACT 2022 IS

DEVOID OF SUBSTANTIVE DUE PROCESS AND
ULTRA VIRES TO THE CONSTITUTION?

2.WHETHER THE RIGHTS OF THE ACCUSED PERSON IS INFRINGED UNDER

THIS ACT?

3. WHETHER THE PETITION IS MAINTAINABLE BEFORE THE HONORABLE

HIGH COURT?
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SUMMARY OF ARGUMENTS

1. WHETHER THE CRIMINAL PROCEDURE (IDENTIFICATION) ACT 2022 IS

DEVOID OF SUBSTANTIVE DUE PROCESS AND
ULTRA VIRES TO THE CONSTITUTION?

Yes, the criminal procedure (identification) Act 2022 is devoid of substantive due process and
ultra vires to the constitution. The petitioner has prayed for the issuance of a writ of mandamus
or any other appropriate writ, direction or order declaring the aforesaid provisions of the Act as
unconstitutional and void.

2. WHETHER THE RIGHTS OF THE ACCUSED PERSON IS INFRINGED UNDER THIS

ACT?

Yes, the rights of the petitioner are infringed in the substantive due process. The right to life and personal
liberty mentioned in Article 21was infringed, the Article 20(3) where the protection in respect of
conviction of the offences mentioned is violated. Therefore there is a gross violation of her right.

3. WHETHER THIS PETITION IS MAINTAINABLE BEFORE THE HIGH COURT OF

ESTANCIA?

Yes, the petition filed by Mrs. Bhamini Fatima is maintainable in this instant case in the HON’BLE high
court, where she has advanced for justice. There was a gross violation of her fundamental right and act of
false accusation against her.
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ARGUMENTS ADVANCED

1. WHETHER THE CRIMINAL PROCEDURE (IDENTIFICATION) ACT 2022 IS

DEVOID OF SUBSTANTIVE DUE PROCESS AND ULTRA VIRES TO THE
CONSTITUTION?

Yes, the Criminal Procedure ( Identification ) Act 2022 is devoid of substantive due process and
ultra vires to the constitution.The petition has prayed for the issuance of a writ of mandamus or
any other appropriate writ, direction or order declaring the aforesaid provisions of the Act as
unconstitutional and void.

A) Under the criminal procedure (Identification ) Act 2022 , This Section 2(I)(a)1 is violative of
Article 14.
Section reads as follows
(a) "Magistrate" means,—
(i) in relation to a metropolitan area, the Metropolitan Magistrate;
(ii) in relation to any other area, the Judicial Magistrate of the first class; or
(iii) in relation to ordering someone to give security for his good behaviour or maintaining peace,
the Executive Magistrate;

While the ambit of ‘person from whom data may be collected’ has been increased without
providing adequate reasons for doing so, no effort has been made to create an internal safeguard
against the harmful practices that may be carried out by the police due to such an ‘increased
ambit’.It is important to note here that investigation in all cases does not require collection of
personal data, except for extreme cases such as preventative detention.The accused in this case
was not held under preventative detention .Hence these grounds cannot be considered a valid

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Criminal Procedure (identification) Act, 2022
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reason for measurements which includes collection of iris and retina scans, photographs, finger
impressions, palm-print impressions, footprint impressions, physical and biological samples and
their analysis, behavioral attributes including signatures, handwriting or any other examination.
In the case of Magan Lal Chaggan Lal v Municipal Corporation of Greater Bombay2. The
court made a distinction between the statute which themselves make a classification and those
which authorize the executive to make a classification. In the first case, the statute will be invalid
if it fails to meet the reasonable classification test. In the latter case, if the statute provides
guidelines, whether express or implied, to the executive to make classification, and the executive
fails to meet the test, only the action will be invalid and not the statute itself.

B) Under the criminal procedure (Identification ) Act 2022 , Sect 2(I)(b )3 is violative of Article
21 as well as Article 20 (3)
This section states :
(b) "measurements" includes finger-impressions, palm-print impressions, foot-print impressions,
photographs, iris and retina scan, physical, biological samples and their analysis, behavioral
attributes including signatures, handwriting or any other examination referred to in section 53 or
section 53A of the Code of Criminal Procedure,1973. 4
All of this data is extremely personal to each individual and collection of the same is a violation
of every individual’s right to privacy protected under Article 21 of the Constitution 5.

There also seems to be no nexus between collection of this data as evidence against the accused
persons and the proposed aim sought to be achieved. The Act seeks to violate the accused
person’s right to privacy without providing a legitimate purpose. The same is in the judgment
passed by the Supreme Court in K.S. Puttaswamy and Ors. vs Union of India and Ors6
wherein the court held that privacy also safeguards autonomy, personal integrity and dignity and
can ‘only be restricted by a law which is proportionate and serves a legitimate State aim’.

2
AIR 1974 SC 2009
3
Criminal Procedure (identification) Act 2022
4
Criminal procedure code, 1973
5
Constitution of India, 1950
6
AIR 2017 SC 4161
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Terms like ‘measurements’, ‘biological samples’ and ‘behavioral attributes’ provide wide room
for interpretation that can be used by the state to collect self incriminating evidence against any
arrested, convicted or detained person and without their consent. This leads to transgressing the
right against self-incrimination provided under Article 20(3) 7 of the Constitution.

In Gobind Singh v. State of Madhya Pradesh8The Court held that the mental state of an
individual comes under the ambit of ‘Right to Privacy’. Later, developments in this area
observed that the authority of the State to compel an individual to expose the parts of his life
which he wishes to keep to himself is ultra vires the Constitution as it is in contravention of the
rights guaranteed under Article 20(3) and 21.

The Supreme Court, in Sunil Batra Vs Delhi Administration (1979) explicitly stated that
during a prisoner’s time in jail, the jail authorities do not have any right to punish, torture or in
any way discriminate against them without the explicit permission or orders of the court, and that
a convicted prisoner still has the right to life and liberty under Article 21 of the Constitution,
even when inside of a jail. But when a provision provides a warder with the power to collect
samples from convicts in the jail under their management, without adequately specifying the way
in which they can do it, it gives them a free pass to do anything. Such a free pass makes the
provision contrary to the very essence of the right to life and liberty jurisprudence upheld by
Sunil Batra.

C) Under the criminal procedure (Identification ) Act 2022 , Section 3 and 4 9 violates Article 21 .
This Section deals with Collection, storing, preservation of measurements and, sharing,
dissemination, destruction and disposal of records.
The Act allows retention of such personal data for 75 years and further allows the National
Crime Records Bureau to share this personal data with any law enforcement agency in the
interest of investigation and prosecution of any offences . This is against the principle of purpose
limitation. The principle of purpose limitation means that even if collection of data from

7
Constitution of India, 1950
8
AIR 1975 SC 1378
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Criminal procedure (identification) Act 2022
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individuals is allowed, it needs to be used for the specific purpose for which it was collected and
nothing else.

The present Act allows collection of iris and retina scans, photographs, finger impressions,
palm-print impressions, footprint impressions, physical and biological samples and their
analysis, behavioral attributes including signatures, handwriting or any other examination. All of
this data is extremely personal to each individual and collection of the same is a violation of
every individual’s right to privacy protected under Article 21 of the Constitution.

Under the criminal procedure (Identification ) Act 2022 , Section 5 is violative of. Article 20(3) .

This sect deals with the Power of Magistrate to direct a person to give measurements.

Specifically, these terms are open to interpretation to include ‘measurements’ of a testimonial

nature taken by way of a compelled psychiatric evaluation. Such evaluation, when it leads to any
incriminating admission, would constitute a ‘testimonial compulsion’. This coercive provision
therefore transgresses the right against self-incrimination, a well-established principle of our
criminal justice system and mandated under Article 20(3) of the Constitution.

Under the criminal procedure (Identification ) Act 2022 , Section 8 is violative of Article 21 .

This section deals with the power to make rules.

The petition also states that the fundamental right to life and personal liberty under Article 21
provides a shield to protect ‘bodily integrity and dignity’, and such protection extends to
prisoners, undertrials, arrested persons, detainees in the course of investigation and persons in
protection homes. Forcing an individual to part with his ‘measurements’ under the provisions of
Act violates the standard of `substantive due process’ which is required for restraining personal
liberty. It is submitted that Sections 3 and 5 of the Act, in flagrant violation of the law laid down
by the Supreme Court, allows excessive, coercive and arbitrary intrusion into the dignity of a
convict as well as of an individual who may be called in for simple questioning, or who is
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involved in the pettiest of offenses. These provisions constitute a clear attack on ‘personal
liberty’ and clearly fall foul of Article 21 of the Constitution and are thus liable to be struck
down.

The provisions are arbitrary, excessive, unreasonable, disproportionate, devoid of substantive due
process and in violation of fundamental rights of the citizens of India as well as of the basic
structure of the Constitution of India , and thus are liable to be struck down by the court.

2. WHETHER THE RIGHTS OF THE ACCUSED PERSON IS INFRINGED UNDER THIS

ACT?

Yes, the rights of the petitioner are infringed in the substantive due process. The right to life and personal
liberty mentioned in Article 21 was infringed, the Article 20(3) where the protection in respect of
conviction of the offenses mentioned is violated. Therefore there is a gross violation of her right.

Article 21 of the Indian constitution says : Protection of life and personal liberty- No person
shall be deprived of his life or personal liberty except according to procedure established by law.

Article 20(3) of the Indian constitution says : Protection in respect of conviction for offences-
No person accused of any offence shall be compelled to be a witness against himself.

Self incrimination is the art of saying or doing something that allows the court to arrive at a
conclusion.It is based on the legal maxim “nemo teneteur prodre accussare seipsum”, which
means “No man is obliged to be a witness against himself.”

In M.P. Sharma v. Satish Chandra10, it was held that a person whose name is mentioned in the
first information report as an accused can claim protection under Article 20(3). The privilege
against self-incrimination is available at both trial and pre-trial stage i.e. when the police
investigation is going on and the person is regarded as an accused, or even if his name is not
mentioned in the FIR as an accused.

A.K. Gopalan Vs. The State of Madras11 The preventive Detention Act, 1950, with the
exception of section 14 thereof did not contravene any of the Articles of the Constitution and
even though section 14 was ultra vires in as much as it contravened the provisions of Article 22
of the Constitution, as this section was severable from the remaining sections of the Act, the

10
1954 AIR 300, 1954 SCR 1077
11
AIR 1950 SC 27
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invalidity of Section 14 did not affect the validity of the Act as a whole and the detention of the
petitioner was not illegal.

The arrest took place without taking the maxim AUDI ALTERAM PARTEM which means hear
both sides.The accused (Bhamini Fathima) has every right to know the reason behind her
arrest,but the arrest took place without any warning.

Section 5312 of the criminal procedure code basically deals with the medical practitioner which
mentions (1) When a person is arrested on a charge of committing an offence of such a nature
and alleged to have been committed under such circumstances that there are reasonable grounds
for believing that an examination of this person afford evidence as to the commission of an
offense,it shall be lawful for a registered medical practitioner acting at the request of a police
officer not below the rank of sub inspector. and for any person acting in good faith in his aid and
under his direction, to make such an examination of the person arrested as is reasonably
necessary in order to ascertain the facts which may afford such evidence, and to use such force as
is reasonably for that purpose.

(ii) (2) Whenever the person of a female is to be examined under this section, the examination
shall be made only by, or under the supervision of, a female registered medical practitioner.
Explanation.- In this section and in section 54," registered medical practitioner" means a medical
practitioner who possesses any recognized medical qualification as defined in clause (h) of
section 2 of the Indian Medical Council Act, 1956 (102 of 1956 ) and whose name has been
entered in a State Medical Register.

In the case of Deomon Shamji Patil v The state (1958) 13,two interesting questions of law arise
in the case. One is whether police officers are empowered by law in the case of a person
suspected or accused of an offense under the Bombay Prohibition Act, to take that person,
against his will, to a doctor for medical examination. The second question arises if the first is
answered in the negative, and that question is whether such a person can lawfully exercise the
right of private defense against the force sought to be used in taking him to a doctor.

In the case of Selvi and Ors v State of karnataka (2010) 14The Court ruled that the use of such
neuroscientific investigative techniques constituted testimonial compulsion and violated an
accused person's right against self-incrimination under Article 20(3), and their right to life and
personal liberty under Article 21 of the Constitution.

The court also emphasized the limitation of the evidence that is collected with the

12
Criminal procedure code,
13
AIR 1958 SC 309
14
AIR 2010 SC 1974
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above-mentioned techniques. The court interpreted Section 20(3) of the constitution which
speaks about self-incrimination. The Court held that the collection of evidence by means of
medical examination and any other techniques such as DNA profiling, Brain Mapping,
Polygraph test should be limited to the extent of incriminating the accused. Furthermore, the
right to privacy of the accused should not be infringed. When such coercive criminalisation of
an individual is perpetuated without any consequences for the authorities, it robs the individual
of a free and fair trial, taking away their right to life and liberty under Article 21 of the
Constitution, as a result.

3. WHETHER THIS PETITION IS MAINTAINABLE BEFORE THE HIGH COURT OF

ESTANCIA?

Yes, the petition filed by Mrs.Bhamini Fathima is maintainable in this instant case in the Hon’ble
high court ,where she has advanced for justice.There was gross violation of her fundamental
rights and act of false accusation against her.Because Mrs.Fathima in this instant case does not
have any ‘mens rea’ for the execution of the crime,it was her own husband and daughter who
were murdered for whom she worked day and night to satisfy the financial needs.

The Article.21 of the Indian constitution is put on to challenge the criminal procedure
(identification ) Act 2022. Section 4 15clearly infringes the right to privacy of the individual,

4. (1) The National Crime Records Bureau shall, in the interest of prevention, detection,
investigation and prosecution of any offense under any law for the time being in force,—

a) collect the record of measurements from State Government or Union territory Administration
or any other law enforcement agencies;
(b) store, preserve and destroy the record of measurements at national level;
(c) process such record with relevant crime and criminal records; and

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Criminal procedure (identification) Act, 2022
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(d) share and disseminate such records with any law enforcement agency, in such a manner as
may be prescribed.

(2)The record of measurements shall be retained in digital or electronic form for a period of
seventy-five years from the date of collection of such measurement:
Provided that where any person, who has not been previously convicted of an offense punishable
under any law with imprisonment for any term, has had his measurements taken according to the
provisions of this Act, is released without trial or discharged or acquitted by the court, after
exhausting all legal remedies, all records of measurements so taken shall, unless the court or
Magistrate, for reasons to be recorded in writing otherwise directs, be destroyed from records

(3) The State Government and Union territory Administration may notify an appropriate agency
to collect, preserve and share the measurements in their respective jurisdictions.

The samples so collected when proved acquitted , still remain in the records thus infringing the
privacy of the individual. The right to privacy is inextricably bound up with all exercises of
human liberty – both as it is specifically enumerated across Part III, and as it is guaranteed in the
residue under Article 21. It is distributed across the various articles in Part III and, mutatis
mutandis, takes the form of whichever of their enjoyment its violation curtails.

The Article 14 of the constitution of Estancia deals with "The State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of Estancia .”In the
instance of this scenario , the criminal procedure (identification)act ,2022 is a provision is a
direct contravention of Article 14 of the Constitution, which gives a person right against arbitrary
and unreasonable State action. This unreasonable action further violates an individual’s right to
fair trial, whether they are the main accused or not.
Article.20(3) the self incrimination act under the prevention of convict
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PRAYER

In the light of facts stated, issues raised, arguments advanced and authorities cited, the petitioner
humbly submits that this hon’ble high court of Mehula may be pleased to declare the following:

1. The criminal procedure (identification) Act, 2022 is devoid of substantive due process
and ultra vires to the constitution.

2. There has been a violation of right to life and personal liberty enshrined under Article 21
of the constitution of Estancia.

3. The petition is maintainable under the high court of Mehula

AND / OR

Pass any order as the HON’BLE court deems fit in the interest of equity, justice, FairPlay and
good conscience.

All of which is humbly prayed

(Counsel on behalf of the petitioner).