Appellate Division Cases
(CRIMINAL)
PARTIES
Captain (Rtd). Nurul Huda ………………….. ….Appellant
= Vs =
The State ……………………………………….Respondent
JUSTICE
Muinur Rezu Chowdhury. C.J
Mohammad Fazlul Karim. J
Syed J. R. Mudassir Husain J
Abu Sayeed Ahammed J
JUDGEMENT DATE: December 1st, 2002
Section 497, 498 of the Code of Criminal Procedure,
Thus apart from the provision in section 339C (3) of the Code Criminal Procedure inordinate delay in prosecution of the instant case thereby dragging of the proceeding in a trial for no fault of the accused may be considered to be a ground for enlarging the accused appellant on bail…. (22)
Khalid Saigal Vs. State 14 DLR (SC). Mohammad Aslam, Vs. State 19 DLR (SC) 445,
Mikhlesur Rahman Vs. State, 36 DLR 1784,Riasat Ali Vs. Ghulam Muhammad 20 DLR(SC) 339
Criminal Appeal No. 20 of 2002 (From the judgment and order dated 4th June
2001 passed by the High Court Division in Criminal Miscellaneous Case No. 1965 of 1997).
Mr. Khandakar Mahbub Hosaiin, Senior Advocate instructed by, Mr. Aftab Hossain. Advocate-on-Record….For the Appellant
Mr. Abu Kowser Dabirushan, Deputy Attorney General, instructed by Mrs Sufi a Khatun. Advocate-on-Record… For the Respondent
JUDGMENT
1. Mohammad Fazlul Karim, J. This appeal by leave is to consider as to whether the appellantcould be enlarged on bail being in custody for almost six years without any trial as the further proceeding of the case has been stayed by (he High Court Division in Criminal Revision No. of 2000 on an application filed by another co-accused and there is no chance of early disposal of the said Revision mismatch as the trial of the case being not concluded within the specified time of 60 days from the date on which the case was received for trial the appellant may not be kept in custody for anindefinite period as under section 339C (4) of the Code of Criminal the appellant is entitled to be released on bail and that the High Court Division failed to consider while refusing the prayer for bail that the appellant has been suffering from enlarged prostate gland and problems in his armory track and also suffering from mental tension and depression for being in custody lor such an inordinate long time without trial.
2. This appeal is directed against the judgment and order dated 4.6.2001 rejecting the prayer for bail of the appellant passed by the High Court Division in Criminal Miscellaneous Case No. 1965 of 1997 arising out of Ramna PS. Case No. 93 dated 21.10.1996 under sections 149/448/326/307/302/34 of the Penal Code.
3. The short fact leading to this petition is that one Sahare Begum wife of Abul Hasanat Abdullah lodged an FIR Alleging, inter alia, that on 14.8.1975 at about 4.30 to 5.00 A. M. her house was raided by some miscreants and the inmates of the house took shelter in the room of late Abdur Rob Sarniabat Closing the doors and windows. At one stage this appellant along with others forcibly broke open the doors and some of them other than
the appellant stared indiscriminate firing which caused the death of Abdur Rob Sarniabat, Shahid Sarniabat. Baby Sarniabat. Arif Sarniabat, Babu Sarniabat, Laxmi, Potka and others and all of them died on the spot. The informant and others also sustained bullet injuries. This appellant and others were recognized at the time of occurrence.Ultimately charge sheet was submitted against the accused persons including this appellant Captain (Retd). Nurul Huda. It is the case of the appellant that he was arrested from his resdence on 22.10.1996 who after his arrest prayed for bail on several occasions which were rejected by the Chief Metropolitan Magistrate. Then a petition for bail was moved before the learned Sessions Judge. Dhaka who by order dated 6.5.1997 rejected the prayer for bail.
4. Mr. Khandakar Mahbub Hossain the learned Counsel for the appellant submits with reference to section 339C(4) of the Code of Criminal Procedure that the appellant is entitled to be enlarged on bail as the trial could not be concluded without 360 days (the specified time) inasmuch as the appellant is in custody for over six years without any trial and there is not possibility of early trial of the case because the Proceeding of the case had been stayed by the High Court Division in Criminal Revision No. 123 of 2000 at the instance of another coaccused and there is no chance of early disposal of the said rule and about 61 pws. would be examined in support of the prosecution case, the appellantmay not be kept in custody for an indefinite period without trial and that the High Court Division also failed to consider that the appellant has been suffering from enlarged prostate gland and problems in his urinary track and also suffering from mental
tension and depression for being in custody for such an inordinate period of lime. The learned counsel Further submits that in view of the alleged occurrence dated 14th Ausust 1975 and the FIR having been lodged after lapse of about 2 I years on 22.1 O.I 996 the implication of the accused appellant was an afterthought and subsequent embellishment
out of enmity and grudge between the informant party and the accused appellant as it appears from the FIR that on general allegations of firing shots against the appellant who was known from before that he along with Major shariar Major Pasha, Major Majid along with other miscreants with fire arms entered and kicked open the door of the house and surrounded the victims and made them captive in a room at the ground floor and accused Major Shariar and captain Majid fired shots at them whereupon they fell down on the floor, subsequently the appellant along with Major Pasha fired shots, there is no prima facie case of any overt act has been made out against the appellant.
5. Though the respondent State has not filed any concise statement, for ends of justice we have heard Mr. Abu Kowser Dabirushan. the learned Deputy Attorney General who appeared for the State and has submitted that the allegations of serious nature of commission of non cognizable offence having been made out against the appellant
he is not entitled to bail as the same is rcstrcled under the provision of section 497 of the Penal Code. The learned Deputy Attorney General has further submitted that the provision of section 339C(4) of the Code of criminal Procedure do not confer any right upon the accused to be enlarged on bail for non-completion of the trial within the specified time as the trial has been held up because of the stay order from the High Court Division for no fault of the prosecution. The basic idea of bail is release of a person from the custody of police and to deliver him into the hand of surety, who undertakes to produce him in Court whenever ordered to do so and in the case of an offence punishable with death or imprisonment for life the mere heinousness/grievousness of the offence is not by self a circumstance sufficient to take away the discretion of a Court to grant bail in deprivation of the accused’s fundamental right to be freed but in addition thereto there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence,
6. In the case of Khalid Saigal Vs. State reported in 14 DLR (SC) 321 it has been held that: “We mas1 state straightway that where a Court is called upon to exercise its judicial discretion it will not be discharging its functions properly if it were to proceed upon any a prior assumption that in all cases where an offence punishment with death or ransportation for life is alleged bail must as a matter of course be refused, nor can there be anv rule of practice upon the basis of which such a discretion can be judicially exercised for, rarely will there be two cases in which the facts are alike ……………………………………… “To act upon a rule of practice may, therefore well constitute an arbitrary exercise of a discretionary power, for the exercise of a discretion vested by law in a Court must be upon sound judicial principles after taking into account the facts and circumstances of each case”.
7. when the Court is called upon to exercise its judicial discretion it should not proceed upon any prior assumption that in all cases where an offence j punishable with death or imprisonment for life is alleged, bail must, as a matter of course, be refused, nor can there be any rule of practice on the basis of which such a discretion can be judicially exercised. Thus the discretion to enlarge on bail has to be exercised in a judicial manner with due regard to the circumstances of each case, without any tendency of unnecessarily affecting the liberty of the persons accused of criminal offences.
8. Section 497 of the Code of Criminal Procedure provides in a positive sense of allowing bail to any person arrested being accused of any non-bailable offence with a rider clause in a negative sense not to allow bail with qualifying words ^ that if there appears reasonable ground of believing that the accused has been guilty of an offence punishable
with death or imprisonment for life” but even then proviso to sub-section (1) of section 497 makes an exception that bail in the later case could be allowed on the ground of tenderness ot age, womanhood, sickness or infirmity.
9. Thus under section 497 of the Code of Criminal Procedure the Court would enlarge an accused of non-bailable offence unless it apiv.irs to it that there is reasonable ground of belk ing , that the accused is guilty and even then the proviso makes certain exception in certain specified cases.
10. However, the rule of general law laid down in section 497 of the Code of criminal Procedure is not strictly binding on the High Court, The question of granting or refusing bail depends upon the particular circumstances of each case and the mere fact that an offence is punishable with death or life imprisonment is not by itself sufficient to refuse bail under section 498 of the Code of Criminal Procedure.
11. The powers to release an accused person on bail under section 498 Cr. P. C. are virtually unlimited and the question is entirely one of discretion bearing in mind the genera! principle that in refusing bail it is generally necessary to see whether there are reasonable grounds for believing that the accused has committed the offence and whether he is likely to tamper with evidence during his enlargement on bail, with evidence during his enlargement on bail.
12. As regards the submission of the learned Deputy Attorney General regarding the scope of section 497 Cr. P. C on an application for bail under section 498 of the Code of Criminal Procedure, it appears from the discussion above that the power conferred there under on the High Court Division or the Court of Sessions are not controlled by imitation
contained in section 497 Cr. P. C. There is nothing in section 496 and 497 Cr. P. C. to show that these sections were intended to apply only to the investigating police or the Court holding enquiry or trial. The wording of those sections makes it clear that it is intended to contain the entire law relating to the granting or refusal of bail to an accused which had to be applied by all Courts alike.
13. The word “if there appears reasonable grounds for believing ” used in section 497 of the Code of Criminal Procedure has been interpreted in the case of Miharnmad Aslam, Vs. State reported in 19 DLR (SC) 445 wherein it has been held that. “The High Court is not to examine the merit of the prosecution case or the plea of defence in finding whether reasonable grounds appear for believing that accused person has been guilty otherwise any expression of opinion about the merits of the case by the High Court may dispose of the case before the trial has started.”
14. Thus the High Court Division is not to make any opinion regarding the merit of the prosecution case in finding whether the reasonable ground appears for believing that the accused has been guilty, otherwise, expression of such opinion about the merit of the case would pre-judge the merit of the case before the trial which will be a dangerous proposition before the trial is s started in the trial Court. In interpretation previous section 339 (4) (since amended) of the Code of Criminal Procedure Latifur Rahman. J as his Lordship then was, in the case of Mikhlesur Rahman Vs. State, 36 DLR 1784 held that ” Sub-section (4) of section 339C clearly says that if the trial can not be concluded within specified tiem or within extended period the proceeding shall be stopped and the accused persons shall be released” Thus the said section was interpreted to be of mandatory nature.
15. The said provision has been substituted by a new sub-section (4) of Section 339C of the Code of Criminal Procedure. Section 339C (4) of the Code of Criminal Procedure as amended reads as under: (4) If a trial cannot be concluded within the specified time, the accused in the case if he is accused of a non bailable offence, may be released on bail in the satisfaction of the Court, unless for reasons to be recorded in writing, the Court otherwise directs. Interpreting of the imperative or directory nature of any enactment remains to be considered that intention is to be attributed to the same on question necessarily arising out of its enactment and on which it has remained silent, Thus when a
statute requires that something shall be done in a particular manner or form expressly declaring what shall be the consequence of non-compliance the requirement is regarded as imperative or mandatory.
16. On perusal of the provision of section 339 (4) of the Code of Criminal Procedure it appears that if the trial has not been concluded within the specified time i. e. 360 days from the date on which the case was received for trial the accused of non bail able offence may be released on bail to the satisfaction of the Court unless the Court otherwise
direct in writing . Thus the section provides that for failure to complete the trial within the specified time a right is accrued to the accused of an non-bailable offence which has the mandatory effect to be released on bail. The subsection provides for the consequence of release on bail if is the trial not concluded within specified period but the words. “
Unless for reasons to be recorded in writing the Court otherwise directs” are designed to be exercised in exceptional circumstances to deprive the right to be enlarged on bail on very cogent reasons. The reasons including the strong possibility of absconding or tempering with witnesses or hindering the prosecution of the trial etc.
17. The grant of bail is the discretion of the Court and the Court could consider the exercise of discretion if it is satisfied in the facts and circumstances of the case that the trial cannot be concluded within the specified time as provided under the provision of law.
18. In the instant case admittedly the period of completion of trial expired long back but the High Court Division in its impugned judgment has ventured to lay down certain general assumptions by way of exception to law by holding that” A speedy trial in all circumstances, however is not a hard and fast Rule. Now-a-days trial cannot be expedited ue to verities of reasons, such as increasing number of cases, seeking of adjournments, collection of witnesses for production before Court and other procedural hurdles. Delay in holding trials in all cases and circumstances is no good ground for granting bail to an accused person specially when he stands arraigned of a crime punishable with death or
imprisonment for life” The said assumption we are constrained to hold, are not only contrary to the provision of law but also to the established principle of law in granting bail and the High Court Division has not assigned any reason refusing bail which is permane to the fact of the case, On perusal of section 339 (4) we are of the view that even in a non bailable offence the accused is in titled to be enlarged on bail unless the Court decided otherwise assigning reasons which are relevant to the fact of the case, In that view of the matter the High Court Division acted illegally in incorporation certain
extraneous assumptions foreign to the concept of the sections 339C (4) and 497 Cr. P. C. and the same as well could not be contemplated there under in the facts of the instant case in order to limit the exercise of discretion migrating bail to an accused.
19. Section 497 also provides for illness as a ground for enlarging on bail and the appellant, has asserted that he has been suffering form enlarged prostate gland and problems in his urinary track and he is also suffering from mental tension and depression being an accused languishing in jail custody for over 6 years since 22nd October 1996 but the same has not been denied by the prosecution in this appeal.
20. In the instant case, the charges has been framed on 4th October 1999 on the basis of a charge sheet submitted in the case on 30th July 1997 and FIR was lodged on 21.6.1996 over an occurrence dated 14th August 1975 . It may be mentioned here that it appears from the certified copy of the order sheet of the Court below that on the basis of order or stay in criminal revision No. 123 of 2000 all further proceeding of the case has been stayed pursuant to an order or High Court Division dated 10.5.2000 . Although the learned Deputy Attorney General submits that there is no stay of further proceeding of the case against the appellant but since 10.5.2000 no step has been taken by the prosecution either to get the said simmal revision disposed of or to make the case of the
appellant separated in order to continue with the trial of the case, Undue delay in holding trial, in the facts and circumstances, due to the prosecution’s preconstination may be considered as valid ground for granting bail. Over and above, the prosecution could not give plausible reason for such inordinate delay in proceeding with the case and these circumstances can be considered as a ground for granting bail to an accused even in the instant case.
21. Needless to repeat the principle of the criminal jurisprudence that ‘ an accused is presumed to be innocent unless contrary is proved’ and in respect of an accused with allegations of commission of an non-bailalbe offence, it has been held in the case of Riasat Ali Vs. Ghulam Muhammad reported in 20 DLR (SC) 339 that ” “the prosecution is expected to proceed with its case with all dispatch elimination every unavoidable delay in order to bring it close and thus to determine the fate of the accused persons which hangs in the balance as long as the prosecution does not terminate one way or the other. The prosecution cannot be prmitted to enlist the will of the Court on its side directly
or indirectly in prolonging the worries and harassment of an accused person which are
inevitably caused by his protracted detention without trial”.
22. Thus apart from the provision in section 339C (3) of the Code Criminal Procedure inordinate delay in prosecution of the instant case thereby dragging of the proceeding in a trial for no fault of the accused may be considered to be a ground for enlarging the accused appellant on bail.
23. Besides inordinate delay in prosecuting the trial of the case and the provision section 339 (4) of the Code of Criminal Procedure, the fact that the appellant has been suffering from enlarged prostate gland and problems in his track and from the illness for long as well attracts the provision of proviso to section 497 Cr. P. C. for consideration to
enlarge the accused on bail pending trial of the case.
24. In view of the above, we are inclined to enlarge the accused appellant on bail till disposal of the Metropolitan Sessions Case No. 8 of 1999 pending in the Court of Metropolitan Additional Sessions Judge, First Court Dhaka, The trial Court, however may cancel the bail on any tested ground as to misuse of bail as it may deem fit and proper. The accused appellant shall, however take permission of the trial Court in the event of any compelling occasion/circumstances necessitation to leave the Country.
25. Accordingly, the impugned order of the High Court Division is set aside and it is ordered that let the accused appellant Capt. (Retd) Nurul Huda be enlarged on bail to the satisfaction of the Deputy Commissioner Dhaka, if not wanted in connection with any other case. In the result, this appeal is allowed.
Ed.
Source : I ADC (2004),58