Shamsul Alam Golap @ Md. Shamsul Alam Golap Vs. The State (Syed Abu Kowser Md. Dabirush-Shan, J.)

HIGH COURT DIVISION

(Criminal Miscellaneous Jurisdiction)

Code of Criminal Procedure (V of 1898)

Sections 167 (5) and 498

The cardinal principle of law is enunciated in Section 167 (5) of the Code that if police cannot submit police report within the statutory period of 120 days, in that case accused may be allowed to go on bail. From the proviso to this Section it appears that it casts an obligation towards Court to record the reasons for not granting bail. In the absence of any material for not submitting police report by the IO for a long period of the one year and eight months it is difficult for the court to assign and record the reason as to why the bail will not be granted. It appears that 14 co-accused have already been granted bail by this Hon’ble court for which the petitioner is equally entitled to go on bail. Considering the provisions of Section 167(5) of the Code for non-submission of police report and the harassment of the accused for languishing in the jail custody for more than one year and eight months the accused petitioner was enlarged on bail.   ..(13 and 14).

Major (Retd) M. Khairuzzaman -Vs- The State, 3 B.L.C-344; Anwar Hossain (Md) -Vs- The State, 48 D.L.R-276.

Mr. Khandaker Mahbub Hossain with Mr. Sharif Ahmad                            .…For the petitioner

Mr. Mahbubey Alam, Attorney General with Mr. Biswajit Deb Nath, D.A.G        … … For the State.

Judgment

SYED ABU KOWSER MD. DABIRUSH-SHAN, J :

This rule at the instance of accused-petitioner Shamsul Alam Golap alias Shamsul Alam Golap under Section 498 of the Code of Criminal Procedure was issued on 17-7-2011 calling upon the opposite party to show cause as to why the accused-petitioner should not be enlarged on bail in M.G.R.Case No. 151 of 2010 arising out of Motihar P.S. Case

1. 2.       The short fact of the F.I.R. case is that on 9.2.2010 one Majedul Islam Apu, General Secretary, Bangladesh Chhatra League, Rajshahi University Unit lodged the First Information Report with the Motihar Police Station against 35 accused-persons named in the F.I.R. along with 15/20 unknown persons. The said F.I.R. was recorded as Motihar P.S. Case No.05 dated 9-2-2010 under Sections 148/ 44/324/325/356/ 307/302/ 201/114/34 of the Penal Code and also Section 3 of the Explosive Substance Act. The contention of the F.I.R is that on 9-2-2010 the accused-persons being armed with deadly weapons like Chapati, ramdao, Chaines axe, iron rod, Pistol etc. entered into the T.V. room of S.M. Hall of Rajshahi University with a ill motive of killing. Then accused Shamsul Alam Golap ordered the other accused-persons to kill the activists of the Chhatra League and then the accused Reza caused grievious hurt on the head of Shafiullah with a Chapati. Accused Sabbir caused grievous injury to the waist of Shafiullah with Chapati, accused Arif injured on the head of Taufikul Islam with Chinese axe and accused Rabiul inflicted several blow one after another on the back of Lutfor Rahman by Chapati and when Faruque protested the same the accused Khaled inflicted a ram dao blow on the right rips of Faruque then accused Mobarek Hossain hit on the back side of the head of deceased Faruque by a ram dao and accused Imon and Saifuddin caught hold the right hand of deceased Faruque and accused Liton and Nazmul Hoque by hitting on the left hand by a iron pipe broke his hand. Thereafter accused Rabiul, Tafshir, Shaheen, Milon, Ahad and Anis broke his leg by inflicting iron pipe blow as a result Faruque fell down on the ground then Shamsul Alam Golap pressed on his right rips by his leg. Thereafter when the general student came forward for the rescue of Faruque accused Shamsul Alam Golap managed to escape by firing pistol and Mobarek pointed a cut rifle towards the general student. Thereafter the accused-persons ensured the death of Faruque and accused Obaidul, Sumon, Gazi, Bappi, Raju, Maruf and some unknown accused carried the dead body of Faruque out of T.V. room of S.M.Hall. At that time accused Ahad and Anis blasted a cocktail to frighten the general student for which the informant and others could not come to know where the dead body of Faruque was taken. After searching throughout the night dead body of Faruque was recovered from a manhole of Syed Amir Hall with the help of police. Thereafter the injured persons were admitted into theRajshahiMedicalCollegeHospital for treatment whose condition was critical and the informant could recognize the accused persons with the help of electric light. Thereafter police arrested the accused-petitioner along with others on 24-3-2010.
2. 3.       Earlier the bail petition was moved before the learned Sessions Judge, Rajshaji on 30-5-2011 who was pleased to reject the prayer for bail of the accused petitioner by his order dated 30-5-2011.
3. 4.       Being aggrieved by and dissatisfied with the order of rejection of bail the accused-petitioner preferred the instant bail petition before the High Court Division under Section 498 of the Code of Criminal Procedure and obtained the present rule.
4. 5.       Mr. Khandaker Mahbub Hossain with Mr. Sharif Ahmad, the learned Counsel appearing on behalf of the accused-petitioner submits that the accused-petitioner is absolutely innocent and has committed no offence as alleged. The accused-petitioner has been implicated in this case only because he is the President of Bangladesh Islamic Chhatra Shibir, Rajshaji University Unit. But as a matter of fact he was not at all connected with the alleged murder of Faruque. He is a brilliant student of M.Sc. Class studying in the Department of Genetics in theUniversity ofRajshahi. The learned Counsel further submits that the accused-petitioner himself informed the Police Commissioner, Rajshahi over telephone about the occurrence and for redress. Next he submits that informant is the General Secretary of Chhatra League, Rajshahi University Unit. The occurrence took place at dead of night i.e. at 1-30 A.M. The informant narrated the entire scenario of the occurrence as if he was an onlooker. The facts which has been revealed that there was a free fight between two rival groups of students unit one was Chhatra League and another was Bangladesh Islamic Chhatra Shibir. The learned Counsel next submits that under this chaotic and Aquatic situation it was neither possible nor desirable that an office bearer of Chatra league i.e. Secretary General who was a party to the fight will observe the  entire occurrence as a silent spectator without sustaining any assault or injury or without taking part in the fight.
5. 6.       The learned Counsel finally submits that the accused-petitioner was arrested on 24-3-2010 and since then he has been languishing in the jail custody for about l(one) year 8(eight) months but till to-day the police could not submit the report and also it is not known when the police report will he submitted. Whereas the statutory period of submitting the police report under Section 167(5) of the Code of Criminal Procedure has been laid down that the police report should be submitted within 120 days from the date of receipt of the information relating to the commission of the offence. By now more than l(one) year 8(eight) months have already been elapsed but the Motihar Police could not submit the charge-sheet as yet. The accused petitioner who is a final year student of M.Sc. Class, his studies has been greatly hampered and disrupted as a result he could appear at the final examination.
6. 7.       Under the facts and circumstances of the case, the learned Counsel reiterate that the co-accused who has got specific overt act in the F.I.R. were granted bail by the High Court Division in Criminal Miscellaneous Case No. 31031 of 2010, Criminal Misc. Case No. 19257 of 2010, Criminal Misc. Case No. 9845 of 2010 and Criminal Misc. Case No. 20433 of 2010.
7. 8.       Considering the whole aspect of the case as well as the legal position of non submission of the police report within the statutory period of 120 days, the accused-petitioner is entitled to go on bail.
8. 9.       Mr. Mahbubey Alam, learned Attorney General with Mr Biswajil Deb Nath, the learned Deputy  Attorney General appearing on behalf of the state opposes the prayer for bail vehemently and submits that it was a very sensational case with a gruesome murder and it was a fight between two rival groups of students of Rajshaji University which created a sensation all over the country and has got a serious impact in the society. Next he submits that there is specific allegation against the accused-petitioner in the F.I.R. that he being the active leader of Bangladesh Islamic Chhatra Shibir   who passed the order for killing the activities of Chhatra League and also he actively took part in the occurrence. He pressed the rips of deceased Faruque by his leg to ensure his death. He also opened blank fire by a pistol to terrify the talented and brilliant general student. The learned Attorney General further submits that in reply to the submission of the learned Counsel for the accused-petitioner in respect of section 167(5) of the Code of Criminal Procedure no doubt this section is an enabling power to grant bail to an accused but this is not a mandatory but directory provision of law.
9. 10.    In this backdrop of the case where a heinous crime has been committed under the active role and participation of the accused-petitioner he should not be granted bail only on the score of mere non submission of police report within the time limit. The learned Attorney General in support of his contention referred the case of Major (Retd.) M. Khairuzzaman -Vs- The State which was reported in 3 B.L.C-344 and another decision referred by the learned Attorney General in the case of Anwar Hossain (Md) -Vs- The State reported in 48 D.L.R-276 wherein it has been held:

“The fixation of the period of investigation is meant for speedy trial of the case and to save the accused from unnecessary harassment in jail custody. But this provision is directory and not mandatory- on the expiry of the period for investigation the accused cannot claim bail as a matter of right.”

1. 11.    In the case of Major (Retd.) M. Khairuzzaman -Vs- The State, wherein it is held:

“Although Section 167(5) of the Code of Criminal Procedure enjoins that if investigation is not concluded within 120 days from the date of receipt of the information relating to commission of the offence, the Court, if satisfied, can release the accused-person on bail but he cannot claim such bail as a matter of right when the delay, in the face of peculiar circumstances, in completion of investig-ation of the case is no ground to release the accused-petitioner on bail”.

1. 12.    The learned Counsel finally submits that in this back ground of the case and also the legal position the accused-petitioner should not be allowed to go on bail and if he is granted bail in that case again he will create commotion in the University Campus.
2. 13.    Heard the learned Counsel for the accused-petitioner as well as the learned Attorney General for the state. Perused the F.I.R., record and other connected papers. It appears from the record that the accused-petitioner was arrested on 24-3-2010 and the F.I.R. was lodged on 9-2-2010. Meanwhile l (one) year 8(eight) months have already been elapsed but the police could not submit charge-sheet as yet. The cardinal principle of law which has been enunciated in Section 167(5) of the Code of Criminal Procedure is that if police cannot submit police report within the statutory period of 120 days, in that case accused may be allowed to go on bail. In the proviso of section it has been stated “Provided that for if an accused is not released on bail under this sub-section the Magistrate or as the case may be the Court of Sessions shall record the reasons for it”. It appears that this section casts an obligation towards Court for what reason bail could not be granted. In the instant case prosecution could not produce any materials before the Court as to why the Investigating Officer could not submit the police report within the long time of l(one) year and 8(eight) months. If the Investigating Officer faced any impediment to submit the police report in that case the Investigating Officer ought have written the cause of inordinate delay in submitting police report in black and white. But the prosecution could not produce any materials showing what are the handicaps in submitting the police report. In the absence of production of any such impediment before the Court we are absolutely helpless to assign and record the reasons as to why the bail is not granted according to proviso of Section 167(5) of the Code. It further appears from the record and also from the submission of the learned Counsel for the accused-petitioner that 14 co-accused have already been granted bail by the Hon’ble High Court Division and among them one F.I.R. named accused No. 27 Raidul Islam was also granted bail. If the F.I.R. named accused Raidul Islam is granted bail in that case the accused-petitioner is equally entitled to go on bail. The decision cited by the learned Attorney General in the case of Anwar Hossain (Md) -Vs- The State and Major (Retd) M.Khairuzzaman vs. state also leans support to the granting of bail to accused-petitioner. Wherein it has been held: that the purpose for the fixation of the period of investigation is meant for the speedy trial of the case and to save the accused from unnecessary harassment in jail custody by prolonging investigation. But this provision is directory and not mandatory. Therefore, on the expiry of the period for investigation the accused cannot claim his bail as a matter of right. It is ultimately the discretion of the Court which has to be exercised judicially”. The purpose of adding this section after the amendment in 1992 is to enable the Court to grant bail of the accused-persons where the investigating officer unnecessarily prolonging the investigation to give harassment and suffering to the accused-petitioner.
3. 14.  In the context of the facts and circumstances of the case as well as the legal position particularly the provision of section 167(5) of the Code of Criminal Procedure for non submission of charge-sheet and also considering the harassment of the accused for languishing in the jail custody for more than l(one) year 8(eight) months, we are inclined to enlarge the accused-petitioner on bail.
4. 15.    In the result, the rule is made absolute.
5. 16.    Let the accused-petitioner Shamsul Alam Golap alias Md. Shamsul Alam Golap, son of Motaleb Hossain of Village-Kazipara, P.S. Godagari, District-Rajshahi be enlarged on bail on furnishing bail bond to the satisfaction of the Chief Metropolitan Magistrate, Rajshahi till the framing of charge.

However, if the accused-petitioner misuses the privilege of bail in any manner whatsoever, the trial Court is at liberty to cancel the bail.

Ed.