IN THE COURT OF HONORABLE VIII ADDL.

CHIEF
METROPOLITAN MAGISTRATE
AT BANGALORE

C. C. No: XXX/2023
(Arising from FIR No. XXX/2023 on the file of Kalasipalya Police Station)

Between
1) XXXX
Applicant/Accused
And
1) State By Kalasipalya Police Station,
2) Nagabhushan
Respondents/Complainants

INDEX
S.NO. PARTICULARS Page No. Remarks

From To
1 Memorandum of Written
Arguments along with
Citations

2 ANNEXURE -1 Relevant
Paragraph
Judgement in Suo motu is 7 on
v. State of Kerala,2019 Page
SCC OnLine Ker 2239

3 ANNEXURE -2 Relevant
Paragraph
Operating Portion of is 111 on
Judgement in Lalita Page
Kumari v. Govt. of U.P
[W.P.(Crl) No; 68/2008]

4 ANNEXURE -3 Relevant
Paragraph
Judgement in

1
 Shakuntala vs The is 4 on
State of Delhi ,139 Page
(2007) DLT 178

5 ANNEXURE -4 Relevant
Paragraph
Judgement in Nitya is 9 on
Dharmananda @ K. Page
Lenin vs Sri Gopal
Sheelum Reddy,
CRIMINALAPPEAL
NO. 2114 OF 2017

6 ANNEXURE -5 Relevant
Paragraph
Judgement in is 16 on
Bhupinder Singh and Page
Ors vs State Of Punjab
in CRR No.1669 of 2012
(O&M)

7 ANNEXURE -6 Relevant
Paragraph
Judgement in are 28 &
JAFARUDHEEN & ORS. 29 on Page
VERSUS STATE OF
KERALA, 2022 LiveLaw
(SC) 403,

8 ANNEXURE - 7 Relevant
Paragraph
Judgement in is 7 on
D.Gopalakrishnan v. Page
Sadanand Naik, (2005)
1 SCC 85

9 ANNEXURE - 8
Relevant
Judgement in Paragraphs
K.Ramaraj Vs State By are 36 to
Inspector of Police 39 on
CBCID, Guindy Estate Page.
Chennai, Criminal
Appeal No.301 of 2012.

IN THE COURT OF HONORABLE VIII ADDL. CHIEF

METROPOLITAN MAGISTRATE

2
 AT BANGALORE

C. C. No: XXXX/2023
(Arising from FIR No. XXX/2023 on the file of Kalasipalya Police Station)

Between
1) XXXXXX
S/o
Occ: Advocate
R/o Bangalore
Applicant/Accused
(Party in Person)
And
State By Kalasipalya Police Station,
Bangalore

Respondents/Complainants
(Rep by Sr APP)

MEMORANDUM OF WRITTEN ARGUEMENTS ALONG WITH

CITATIONS ON I.A U/S SEC 258 OF Cr.PC

The above-named applicant most respectfully submits the following arguments.

1) In Suo motu v. State of Kerala , 2019 SCC OnLine Ker 2239 ,the
Honourable Kerala High court held that ,
“ 7. Section 258 can be invoked only in peculiar and unusual circumstances in
cases, wherein no prima facie case is made out against the accused or when the
accusation does not actually constitute an offence or for the reason that the
prosecution is bound to fail on account of a technical defect.

ARGUMENT#1 – NO PRIMA-FACIE CASE HAS BEEN MADE OUT

AGAINST THE ACCUSED AS TO THE INTENTION OF OFFENCE.
(

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2) The prosecution needs to present reliable evidence in support of each element
of a crime i.e on both the intention for offence and commission of offence to
establish a prima facie case, however there is no prima facie evidence as to
intention of commission of alleged offence.

3) The Chargesheet filed states that the accused has assaulted the informant due
to old personal rivalry/enmity, but it does not give out any reason or further
details as to cause of rivalry and moreover there is no evidence even as to
existence of such rivalry.

4) Further the informant in the complaint to police /FIR has stated that Accused
is a Businessman (column 6 of FIR) and that accused had Financial or property
discords/disputes/dealings/connections with the Informant. There is no material
on record to show the existence of such disputes.

ARGUMENT#2– THE ACCUSATION MADE AS TO THE

COMMISSION OF COGNIZABLE OFFENCE DOES NOT ACTUALLY
CONSTITUTE AN OFFENCE -

5) It has been alleged by the informant that the accused came in between his
vehicle suddenly when he was driving. In this regard it is submitted that coming
in between a vehicle does not constitute an offence U/S 341 of IPC.

6) It is submitted that Section 341 Of IPC is an offence against human body and
not against a Vehicle. Stoppage of vehicle does not amount to wrongful
restraint.
Further by the perusal of PANCHNAMA dated 3/06/2023 produced with
chargesheet it can be ascertained that there is enough space on the road and that
the informant could have moved in any direction by evading the accused.

7) When the allegations in the complaint to the police, does not constitute any
cognizable offence an FIR cannot be registered. The precondition for
registration of FIR is the disclosure of cognizable offence or that the alleged
facts should constitute a cognizable offence. The FIR registered in the instant

4
case is illegal as there is no disclosure of cognizable offence or for the reason
the alleged facts does not constitute a cognizable offence.

8) Reliance placed on the judgement of Constitution Bench of the Honourable

Supreme Court in Lalita Kumari v. Govt. of U.P [W.P.(Crl) No; 68/2008]

“At the stage of registration of FIR, what is to be seen is merely whether the
information given ex facie discloses the commission of a cognizable offence. If,
after investigation, the information given is found to be false, there is always an
option to prosecute the complainant for filing a false FIR.

Conclusion/Directions:

111) In view of the aforesaid discussion, we hold:

i) Registration of FIR is mandatory under Section 154 of the Code, if the

information discloses commission of a cognizable offence”

ARGUMENT#3– THE PROSECUTION IS BOUND TO FAIL AS THE

MATERIALS PRODUCED ALONG WITH THE CHARGE SHEET
CANNOT BE RELIED/APPRECIATED BY THE COURT FOR
TECHNICAL REASONS

The Pachamama/Mahazar is false and unacceptable

9) The SPOT PANCHANAMA furnished by the police is said to have been

conducted by the IO on 3rd June 2023 in the evening between 6 PM to 6:40 PM
but the date stamp in the Pachamama photographs of the aforesaid document
indicates that Panchanama was conducted on 09/08/2023 at 18:28 hrs.

10) It is further submitted that the SPOT PANCHANAMA has been conducted
in a different place as against the place alleged by the informant in the
information
and FIR.It has been alleged by the informant that offence occurred near Urdu
School in front of Masjid, LBF road but the SPOT Panchanama has been

5
conducted in 2nd Cross ,Susheela Road ,LBF road.

11) The Panchanama ought not to have been conducted in 2nd cross Susheela
Road on 3rd June 2023 given that the informant has indicated the change of
place of occurrence only on 5th June. 2023 through supplementary statement.

The Supplementary/Further Statement of the informant is taken with an

ulterior motive and cannot be relied. Moreover, it is also invalid for being
hit by section 162 of Crpc

12) The further statement given by the informant on 05/06/2023 indicating the
change in place of occurrence, time of occurrence and duration of offence is not
maintainable as it has been obtained by the police with a view to render the
evidence of ALIBI submitted by accused to the police useless.

13) The police have wilfully hidden the evidence produced by the accused and
have not submitted the same to the court along with the chargesheet. This
honourable court may be pleased to consider the evidence produced by the
accused.

14) In Shakuntala vs The State of Delhi ,139 (2007) DLT 178, the Delhi high
court observed as below,

“4. It is settled law that fair and just investigation is a hallmark of any
investigation. It is not the duty of the Investigating Officer to strengthen the
case of prosecution by withholding the evidence collected by him. If an
Investigating Officer withholds the evidence collected by him, the accused has a
right to rely upon that evidence and tell the Court to take that evidence into
account while framing the charges.”
15) In Nitya Dharmananda @ K. Lenin vs Sri Gopal Sheelum Reddy ,
CRIMINAL APPEAL NO. 2114 OF 2017 , the Supreme Court Court held as
below ,

6
“9. Thus, it is clear that while ordinarily the Court has to proceed on the basis
of material produced with the charge sheet for dealing with the issue of charge
but if the court is satisfied that there is material of sterling quality which has
been withheld by the investigator/prosecutor, the court is not debarred from
summoning or relying upon the same even if such document is not a part of the
charge sheet.”

16) The Supplementary/Further Statement of the informant dated 05/06/2023

obtained by police U/S 161 of Crpc. is INVALID U/S 162 of Crpc as it is
signed by the informant.

17) Reliance Placed on Judgement of the Honourable High Court of Punjab and
Haryana in Bhupinder Singh And Ors vs State Of Punjab in CRR No.1669
of 2012 (O&M)

“Now the question arises whether the said signed statement which was
alleged to be a supplementary statement of the complainant could have been
taken to be a statement under Section 161 Cr.P.C. In my considered opinion,
the scope of the said statement was not a supplementary statement under
Section 161 Cr.P.C., rather the same was hit by a statement under Section 162
Cr.P.C.”

The Statements of the Eyewitness cannot be relied due to the ux-explained

delay in obtaining their statements by the police and that the accused who
is available should be identified by Eyewitnesses only in an identification
parade.

18) It is submitted that there was an undue and unexplained delay in recording
the statement of witnesses. The Spot Mahazar or Panchanama was conducted on
3/06/2023 but statements of the witnesses were recorded on 10/07/2023 and
15/07/2023 after 38 days of the alleged occurrence of offence despite their
regular availability at/near the place of occurrence. Thus, the possibility of
witnesses being influenced and implanted by the informant cannot be ruled
out.

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19) Reliance placed on the Judgement of Honourable Supreme Court in
JAFARUDHEEN & ORS. VERSUS STATE OF KERALA, 2022 LiveLaw
(SC) 403, wherein the court noted as below,

“Delay in Recording the Statement under Section 161 Cr.PC:

28. The Investigating Officer is expected to kick start his investigation

immediately after registration of a cognizable offense. An inordinate and
unexplained delay may be fatal to the prosecution's case but only to be
considered by the Court, on the facts of each case”.

20) It is submitted that the IO should not have shown the photograph of
accused
to eyewitnesses for identification. The right procedure for identification was to
arrange for an identification parade by requesting the learned jurisdictional-
Magistrate as the accused was available for identification. Furthermore, instead
of showing more than one photograph of accused, IO has shown only one
photograph.

21) In D.Gopalakrishnan v. Sadanand Naik, (2005) 1 SCC 85 the

Honourable Supreme court observed as below,

“During the course of the investigation, if the witness had given the identifying
features of the assailants, the same could be confirmed by the investigating
officer
by showing the photographs of the suspect and the investigating officer shall
not
first show a single photograph but should show more than one photograph of
the
same person, if available. If the suspect is available for identification or for
video
identification, the photograph shall never be shown to the witness in advance.

8
22) It is submitted that the IO ought not have taken the photograph of the
accused
in the police station on 8/08/2023 by issuing notice to him U/S 41A. Further
when the accused’s photograph itself was taken on 8/08/2023 the same could
not have been shown to the eyewitness on 10/07/2023 and 15/07/2023.

23) In K.Ramaraj Vs State By Inspector of Police CBCID, Guindy Estate

Chennai, Criminal Appeal No.301 of 2012 ,High court of Madras held as
below,

“Can the Police be allowed to take photographs of the accused in the Police
Station without Magisterial sanction? If we concede that power, what will be
the plight of women-accused? Can the Police take the accused to the scene of
crime or anywhere else and take photographs of him? If the photographs leak
to the Press, will it not affect the evidentiary value of identification in the Test
Identification Parade and Court?

39. Taking into consideration all this, we hold that photograph of an accused
can be taken only in terms of Section 5 of the Identification of Prisoners Act,
1920 and the Police have no authority to do it on their own. “

The Statement of the Circumstantial witness Mr.XXXX is False cannot be

relied. Moreover, it is also invalid for being hit U/S 162 of Crpc

24) Mr XXX states that he took the informant to the Hospital by but the Wound
Certificate NO.2920 submitted with chargesheet states the name of some other
person. (Revanth Kumar).

WHEREFORE the accused most humbly prays that this Hon’ble Court may
kindly be pleased to consider the said arguments and to discharge the accused
from the offences alleged in C.C. No. XXX/2023, to prevent abuse of the
process of law.

Place: Bangalore

9
Date: 05/10/2023 Party in Person/Advocate for
Accused

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