Appellate Division Cases
The State …………………………Appellant
Ad.Abdus Satter and others …………..Respondents
Md. Ruhul Amin J
M. M. Ruhul Amin . J
Tafazzul Islam. J
JUDGEMENT DATE: 5th April, 2004.
Whatever might be the ground in our view, the High Court Division should not have
considered the prayer for bail of the accused respondents when this division on several occasions refused the prayer for bail of the accused respondents………. (12)
Leave was granted to consider the submissions of the learned Advocate that when bail to the accused respondents was refused upto this division they could by granted Bail by the High Court Division ……………….(6)
Criminal Appeal Nos. 06 of 2000. (From the Judgment and order dated 17.09.1998 passed by the High Court Division in Criminal Miscellaneous Case No. 2608 of 1998).
Syed Abu Kowser Md. Debirush Shan, Deputy Attorney General, instructed by Mvi Md.. Wahidullah, Advocate-on-Record ………..For the Appellant
Adbul Malek, Senior Advocate, instructed by Aftabe Hossain, Advocate-on-Record……….. For the Respondents
1. M. M. Ruhul Amin , J :- This appeal by leave is directed against the judgment and order dated 17.09.1998 passed by a Division Bench of the High court Division in Criminal Miscellaneous Case No. 2608 of 1998 making the Rule absolute and thereby granting bail to the 7 accused respondents in Sessions Case No, 3rd 120 of 1993 pending in the court ofAdditional Sessions Judge, Dhaka.
2. Short facts are that on July 9, 1992 at about 8/9 A. M the members and supporters of rival unions of employees of the Titus Gas Transmission and distribution company Limited started assembling at the Second floor of the Company’s Head office at 19 kawran Bazar, Apprehending trouble the Security Inspector of the Company vainly sought police Help. At about 9.45 A. M. the situation turned violent. Several office rooms were ransacked, fixtures and furniture etc. were damaged. During the occurrence Billal Hossain, a supervisor of the company and a trade union leader belonging to the accuser’s rival group was hurled on the ground from the sixth floor of the building causing multiple injuries and fractures on different parts of his body. The victim succumbed to his injuries at the hospital. C. S. Witness No. 25 Mahbubur Rahman was hurled on the ground from the second floor of the building causing injuries on his person. Many of the employees including C. S. witness No. 26 Sahiduzzaman, General Manager (Sales and j Supply) of the Company were injured.
3. Mr. Moniruzzaman, General Manager (vigilance) of the Company Lodged an F. I. R. with Tejgoan police station on July 9, 1991 at 143 P. M . he did not mention any name of accused, but enclosed with the F. I. R. a Photostat copy of a written statment of Sahiduzzaman, in which he stated that accused Respondent No. 2 Md. Abdur Rahman attacked him and struck on his abdomen, hand and head with broken handle of a chaiir causinng fractures on his head for which he was treated at the combined military Hospital. On the same day C. S. witness No. 16 s. M. Zillur Rahman lodged another first information report with Tejgaon police Station over the same occurrence but the police, without recording that information as an F. I. R. recorded the same as a G. D. Entry No. 695 dated July 10, 1992 . In that information it was alleged that twenty two named persons along with 10/15 others, variously armed with deadly weapons, seized the
Head office of the Titas Gas company. Deceased Billal Hossain took shelter in the medical section, saturated in the 6m floor. Faruque Hassan along with others followed him there. He gave order to murder Billal Hossain. Petitioner Nos. 1 to 8 (in the Crl. Misc. Case) and accused Shamsul Huq indiscriminately beat Billal Hossain and threw him on the ground from the sixth floor causing multiple injuries on his person and he was declared dead when he was taken to the hospital.
4. After investigation eight petitioners (in the Crl. Misc. Case) along with twenty six others were charge sheeted for the commission of offence punishable under sections
148/149/325/326/302/114 of the penal Code. They are waiting for trial in Sessions case No. 120 of 1993, before the Court of 3 r d Additional Sessions Judge, Dhaka.
5.1n the meantime 7 witness were examined in the case and thereafter on 14.05.1998 when S. M. Zillur Rahman and P. W. 5 G. m. Anwar went to the court Aforesaid respondents attacked them and for that G.D entry No. 7111 dated 14.05.1998 was lodged by A. S. I. Mr. Hazrat Ali who was on duty in the Court. At one stage of the trial Respondents obtained bail from High court Division. As against that the State moved this Division.
6. Leave was granted to consider the submissions of the learned Advocate that when Bail to the accused respondents was refused upto this division they could by granted bail by the High Court Division. We have heard Mr. syed Abu Kowser Md. Dabirush shan, the learned Deputy Attorney General for the appellant and Mr. Abdul Malek, Senior counsel for the respondents and perused the impugned judgment and order of the High Court Division and all other connected papers.
7. It appears that in criminal petition for leave to appeal no. 103 of 1996 this Division observed that the respondents prayed for bail previously up to Appellate Division unsuccessfully. They again applied for bail and also for quashing the proceedings which was rejected by the trial court and also by the High Court Division in revision. Thereafter they applied for bail under section 339C(4) of the Code of Criminal Procedure before the trial court for the third time which was rejected on 09.09.1995, against which they obtained a rule and the learned Juc’ges of the High Court Division granted bail to the accused respondent for ends of justice upto 15.08.1996 directing the trial court to try and dispose of the case within the said period. This Division dismissed the leave petition of the State with the observation, “we do not normally interfere with the discretionary
exercise of jurisdiction by the High Court Division but this is one case where our interference is called for, but in view of the fact that the trial is on we think that the interest of justice will be served if the accused respondents continue to be on bail till 15.07.1996 with in which the trial court ought to try and dispose of the case. The accused respondents shall surrender to the trial court of the trial is not concluded for any reason on or with in 15.07.1996.” It appears that the trial court could not conclude trial within 15.07.1996 and the accused respondents surrendered before the trial court and they were taken into custody.
8. Thereafter, the accused respondents again moved the High Court Division in the above mentioned criminal misc. case and the High Court Division by the impugned judgment
and order granted bail to them and directed the trial court to dispose of Sessions Case No. 120 of 1993 positively by 28th February, 1999 giving priority to this case over all other cases. It is to be mentioned here that the accused respondents earlier moved the High Court Division several times for bail but their prayers were rejected. The accused respondents also moved this Division in criminal petition for leave to appeal No. 96 of 1994, 125 of 1995 and 91 of 1997 but the prayer for bail was rejected with the observations there were sufficient materials before the High Court Division in believing that the accused persons were guilty of an offence punishable with death or imprisonment for life. In criminal petition for leave to appeal No. 29 of 1994 this Division approved the observation of the High Court Division while dismissing the petition that there is strong prima facie case against the accused respondents under different sections including section 302 of the Penal Code and as such there are reasonable grounds to believe that they have committed the offence punishable with death or imprisonment for life.
9. It is submitted on behalf of the appellant that in the face of such observations by this Division the High Court Division was not justified in granting bail to the accused respondents and as such the same is illegal on the face of it. It is further submitted that already 10 prosecution witnesses have been examined in the case and at this fag end of the trial the High Court Division should not have enlarged the accused respondents on bail.
10. Mr. Malek on the other hand, submitted that the accused respondents complied with the direction of this Division and surrendered when trial could not be concluded within the time fixed by the Court and thereafter with the lapse of time they could make prayer for bail and accordingly made the prayer and the High Court Division after assigning cogent reasons granted bail till disposal of the case and also directed the trial court to dispose of the case with in the time limit fixed by the court.
11. It appears that the High Court Division while granting bail to the accused respondents took into consideration the fact that for the last 6 year the accused respondents and others were under suspension and their families have been suffering and they also did not misuse the privilege of bail granted to them earlier and the High Court Division Considering this humanitarian aspect granted bail to the accused respondents.
12. Whatever might be the ground in our view, the High Court Division should not have considered the prayer for Bail of the accused respondents when this division on several occasions refused the prayer for bail of the accused respondents with specific observation as pointed out earlier that there were sufficient materials before the High Court division in believing that the accused Petitioners were guilty of an offence punishable with death or imprisonment for life and that there is a strong prima facie case against the accused respondents under different sections including section 302 of the Penal Code. We note with dissatisfaction that the High Court Division failed to consider the observations made by this Division while disposing of the above mentioned criminal petitions for leave to appeal filed by the accused respondents for their bail.
13. However, when the accused respondents are on bail for more than 5 years as granted by the High Court Division, we are not inclined to cancel their bail at this stage. In the circumstances, the appeal is dismissed with the above observations. The trial court is directed to conclude trial of Sessions Case No. 120 of 1993 as expeditiously as possible preferable with in six months. At the time of trial if material (s) is placed before the Court and on consideration thereof if the court feels that it will not be desirable in allowing the Respondents on bail in the interest of justice, the trial court will be competent to make appropriate order as regard them.
Source: I ADC (2004), 184