Bail Under Section 498

<h1>DISTRICT: _____________</h1>

<p><b>IN THE SUPREME COURT OF BANGLADESH</b></p>

<p><b>HIGH COURT DIVISION</b></p>

<p><b>(CRIMINAL REVISIONAL JURISDICTION)</b></p>

<p><b>CRIMINAL MIS. CASE NO. OF 2009.</b></p>

<p><b>IN THE MATTER OF:</b> </p>

<p>An application for bail under Section 498 of the Code of Criminal Procedure.</p>

<p><b>A N D</b></p>

<p><b>IN THE MATTER OF:</b></p>

<p>Md. X Khan</p>

<p>Son of Y Khan </p>

<p>Village: Uttar Itabaria</p>

<p>P.S. Borguna </p>

<p>…. <b>ACCUSED-PETITIONER</b></p>

<p><b> (IN JAIL HAJOT)</b></p>

<p>-<b>VERSUS</b>-</p>

<p>The State, represented by</p>

<p>The Deputy Commissioner, Barguna</p>

<p><b>————–OPPOSITE PARTY.</b></p>

<p><b>A N D</b></p>

<p><b>IN THE MATTER OF:</b></p>

<p>Prayer for bail in the Session Case No. 66 of 2008, corresponding to Borguna P.S. Case No. 24 dated 13.12.2007 under sections 302 and 34 of the Penal Code arising out of G.R. Case No. 528/2007.</p>
<p>To</p>
<p>Mr. Justice M. M. Ruhul Amin, the Chief Justice of Bangladesh and his companion Justices of the said Hon’ble Court</p>
<p>The humble petition of the Accused-Petitioner above named most respectfully –</p>
<p><b>S H E W E T H:-</b></p>
<p>1. That accused-petitioner is an under-graduate student at a local College in Barguna. He got admitted in the undergraduate course after completion of the 2-year Computer course at a Vocational Training College at Barguna. The accused-petitioner is a law abiding citizen of the country. </p>

<p>2. That on 13.12.2007 one Md. Delwar Hossain, Sub-Inspector, Borguna Thana Police Station (‘the Informant’) lodged a First Information Report (‘FIR’) against unknown persons under Sections 302, 34 of the Penal Code. It was contended in the Ejhar, amongst other, that on 13.12.2007 the father-in-law (the “accused No. 3” and paternal uncle of the accused-petitioner) of Rahima Akter Joly (the “victim”) informed the police station in written that the victim committed suicide by hanging herself with the ceiling fan at her husband’s tin shed living room and thereby an unnatural death Case No. 20 dated 13.12.2007 was lodged. The informant visited the accused-petitioner’s house at about 4.35 p.m. on the same day and prepared the inquest report. He found a blood injury under right ear of the back-head. The accused-petitioner and the mother-in-law of the victim identified the dead body of the victim and duly signed the inquest report and thereafter they were absconded. The informant is in doubt that the accused-petitioner, the mother-in-law of the victim (the “accused No. 2”) may murder her in collusion of some unnamed persons and may hang the dead body. </p>

<p>A Certified copy of the FIR is annexed herewith and marked as <b>Annexure-“A”</b></p>

<p>3. That the accused-petitioner contends, inter alia, that he and the victim were passing happy conjugal life. Although the victim was rude and emotional, the accused-petitioner ignored that for the sake of survival of the family life. The accused-petitioner was at the village market at the time of the alleged offence. Being informed by the accused No. 2 over mobile phone, the accused-petitioner rushed to home and found the victim’s dead body at their tin shed duplex house. The accused No. 2 informed him that while she was working down-stairs, she heard an unusual sound coming from the up-stairs and she rushed to the upstairs and found the victim hung with the ceiling fan. Later on, at the hue and cry of the accused No. 2, many people including local UP member rushed to the place of alleged offence and witnessed the victim was hung in the ceiling and at the request of local people the accused No. 2 cut off the tied up rope at the neck. While she tried to cut off the rope tied at the neck, there had been an accidental cut injury under right ear of the back-head. The accused No. 2 called on a doctor immediately from the Union Health Complex and the doctor declared the victim dead. The accused No. 3 rushed to the police station and voluntarily informed about the accident and he filed an unnatural death Case no. 20/07 dated 13.12. 2007 in the concerned police station. </p>

<p>A Certified copy of the EJHAR of the unnatural death Case and the relevant order of the Court below are annexed herewith and marked as <b>Annexure-“B”</b></p>

<p>4. That being informed by the accused No. 3, the informant visited the accused-petitioner’s house, inquired about the victim and prepared an inquest report. The accused-petitioner and the accused No. 2 identified the victim’s body and duly signed the inquest report. At one point the informant threatened the accused-petitioner that if they wouldn’t give bribe to him, he would file a murder case against them. Being threatened by the informant in such way, the accused-petitioner and accused No. 2 got frighten and absconded for a while. </p>
<p> </p>
<p>5. That the informant himself prepared the inquest report. He found the victim lying in the bed in the up-stairs of tin shed duplex house. He found the victim’s eye half- closed, the foam was coming out from the nose, closed mouth and locked teeth. He also found the black sign of hanging at the neck. There was a ½ inch deep cut injury at the back of the head under the ear. He did not find any other injury mark. </p>

<p>Certified copies of the Suruth hal report and seizure list are annexed herewith and marked as <b>Annexure-“C”</b> </p>

<p>6. That it is stated that there had been a family dispute over land with Dr. J, the Residential Medical officer, Barguna General Hospital and he was looking for causing bad to the accused-petitioner’s family. Having found the dead body of the wife of the accused-petitioner for conducting post-mortem by himself, he got the sweet chance to take the revenge. He invented the facts, prepared the post-mortem report accordingly and manipulated other doctors to sign and verify there. </p>

<p>Certified copies of the postmortem report are annexed herewith and marked as <b>Annexure-“D”</b> </p>

<ol start=”7″ type=”1″><li>That although it is stated in the post-mortem report that the death was due to asphyxia as a result of strangulation, but the symptoms of strangulation were quite absent in the report. According to <i>Modi’s Medical Jurisprudence</i>, if any death is caused as a result of strangulation, the following external symptoms are usually seen: eyes are prominent; bleeding escapes from the mouth, nostril, ears, sometimes pure blood escapes from there; the tongue is often swollen, bruised, dark in colour; bruising at the back of the neck; genital organs are congested; lips are usually blue. The most common symptoms in strangulation are as follows: the injury to the muscle of the neck and scratches, abrasions, finger nail mark and bruises on the face, neck and other parts of the body. The above mentioned symptoms of strangulation were quite absent in the post-mortem report. </li>
</ol><p> </p>

<ol start=”8″ type=”1″><li>That all the witnesses in their statements made under section 161 stated that at the hue and cry of the accused No. 2 on the date of alleged offence, they rushed to the accused-petitioner’s tin shed duplex house and saw the victim’s dead body. No body stated that they saw the accused-petitioner murdered the victim or caused the victim to death. They confirmed in their statements that they did not see the accused-petitioner at his house at the time and place of alleged offence. </li>
</ol><p>Certified copies of the statements made under section 161 of the Code of Criminal Procedure are annexed herewith and marked as <b>Annexure-“E”</b></p>

<p>9. That upon conclusion of the investigation, the investigation officer submitted the charge sheet being No. 70 dated 28.02.2008 under section 302/34/201 against the accused-petitioner along with 2 others most illegally and the learned Chief Judicial Magistrate, Borguna, sent the record to the learned Session Judge Court, Borguna for trial. The Charge sheet is not supported by the statements u/s 161, inquest report, seizure list and even it is inconsistent with the post-mortem report. </p>

<p>Certified copies of the charge sheet is annexed herewith and marked as <b>Annexure-“F”</b> </p>

<p>10. That on 03.06.2008 the Accused-Petitioner surrendered before the learned Chief Judicial Magistrate, Barguna and preferred an application for bail. The bail application of accused No. 2 and 3 were granted but the bail application of the accused-petitioner was rejected and the accused-petitioner was sent to the custody. </p>

<p>Certified copies of the orders of the Court below have been annexed herewith and marked as <b>Annexure-“G”</b> </p>

<p>11. That the last date on 11.01.2009 was fixed for charge hearing but the proceedings was adjourned by the learned Session Judge and fixed the next date on 22.03.2009 for charge hearing. </p>

<p>Certified copies of the relevant order is annexed herewith and marked as <b>Annexure-“H”</b> </p>

<p>12. That on 16.11.2008, the accused-petitioner filed a bail application before the Court below for granting him bail and the application was rejected by the learned Session Judge, Barguna without assigning any lawful and valid reason. The learned Judge himself surprisingly invented a factual ground to reject the bail application which does not have any basis; neither was it mentioned in the F.I.R., charge sheet nor in the statements under section 161 that “<i>he murdered his wife for dowry”</i>. Although the informant stated in the F.I.R. that he was in doubt that the accused-petitioner and his mother may murder the victim. The learned Court below wrongfully rejected the bail application of the accused-petitioner upon assuming a fact which was not stated in the F.I.R. </p>

<p>A certified copy of the rejection order being No. 11 dated 16.11.2008 is annexed herewith and marked as <b>Annexure: ‘I’</b></p>

<p>13. The Accused-Petitioner is in no way involved in any offence. He was implicated in the case only for harassment. In the F.I.R., the ingredients of murder were quite absent. No body witnessed any torture upon the victim caused by the accused-petitioner on the date of alleged offence nor did any body see the accused-petitioner caused her to death by any means and hanged her in the ceiling fan. The informant filed this case only on the basis of the suspicion. The inquest report does not reveal any torture mark. The informant found no other mark at the neck of the victim except the hanging black mark. But the learned Court below failed to appreciate grounds for enlarging the accused-petitioner on bail. </p>

<p>14. That it is humbly stated that the accused-petitioner is an undergraduate student who has been languishing in jail for a period of about 9½ (nine and half) months for no reason. His student life is about to ruin. </p>

<p>15. That the accused-petitioner has his settled occupation and home in his locality and there is chance for him to abscond if he is granted bail. </p>

<p>16. That this is a fit case where the accused-petitioner can be granted bail by your Lordships.</p>

<p>17. Being aggrieved by and dissatisfied with the order being No. 11 dated 16.11.2008 the humble accused-petitioner begs to move this petition on the following amongst other- </p>

<h5 align=”center”> </h5>

<h5 align=”center”>G R O U N D S: </h5>

<p>I. For that the impugned order being No. 11 dated 16.11.2008 is illegal, unjust, improper and as such the same is liable to be set aside. </p>

<p>II. For that the accused-petitioner voluntarily surrendered before the learned Chief Judicial Magistrate, Barguna on 03.06.2008 and he is in custody since then i.e. for about 9 ½ (nine and half) months. As such the accused-petitioner may be granted bail for the ends of justice. </p>

<p>III. For that the accused No. 3 reported voluntarily to the police station in written just after the alleged offence about the unnatural death of suicide. An unnatural death Case No. 20/07 dated 13.12.2007 was filed by the accused No. 3 before the F.I.R. lodged by the informant against unnamed person. Consequently, there is serious doubt about the alleged offence and therefore, the rejection order dated 16.11.2008 is not tenable in law. </p>

<p>IV. That there is no circumstantial evidence that the accused petitioner murdered the victim or caused her to death. The F.I.R., the statements of witness u/s 161, the inquest report do not reveal any circumstantial evidence which support the alleged offence against the accused-petitioner.</p>

<p>V. For that the victim committed suicide. The inquest report does not reveal any torture mark that can indicate the murder. Rather the said report reveals the hanging black mark at the neck which indicates the committing suicide by the victim herself. Therefore, the rejection order dated 16.11.2008 is not tenable in law. </p>

<p>VI. For that the case is brought against the accused-petitioner only on the basis of suspicion. Therefore, the rejection order dated 16.11.2008 is not tenable in law. </p>

<p>VII. For that all other accused are on bail, and the accused-petitioner is in better footing than the accused No. 2 and 3. The accused No. 2 was present in the vicinity of alleged place of offence. The accused No. 2 was working down stairs while the victim was hanging herself with the ceiling and the accused no. 3 informed the police station. But the accused-petitioner was not at the place and time of alleged offence. Therefore, he is entitled to be enlarged on bail. </p>

<p>VIII. For that the learned Court below wrongfully rejected the bail application of the accused-petitioner upon assuming a fact which was not stated in the F.I.R and as such the accused-petitioner is entitled to be enlarged in bail.</p>

<p>IX. For that the symptoms of strangulation are quite absent in the post-mortem report. Therefore, he is entitled to be enlarged on bail. </p>

<p>X. For that the accused-petitioner has been falsely implicated in this case and he is not at all involved with the alleged offence or with any activity linked to the alleged offence whatsoever. </p>

<p>XI. For that no body saw the accused-petitioner torturing and hanging the victim with the ceiling fan and causing her to death. As such there being no ingredient of section 302 of the Penal Code, the rejection order dated 16.11.2008 is not tenable in law. </p>

<p>XII. For that the accused-petitioner is a law abiding citizen of Bangladesh. He voluntarily surrendered before the lower Court to contest the case and hence, there is no chance for him to abscond if he is enlarged on bail. The accused-petitioner is ready to comply with any condition imposed by your Lordships.</p>

<p>XIII. For that the learned Court below failed to take into consideration that FIR was lodged only to harass the accused-petitioner. </p>

<p>XIV. For that there is no other allegation except the instant one against the accused-petitioner in any police station in Bangladesh. </p>

<p>XV. For that the accused-petitioner is the student and his education is about to ruin due to his custody. </p>

<p>Wherefore, it is humbly prayed that your Lordships would graciously be pleased to issue a Rule calling upon the Opposite Party to show cause as to why the accused-petitioner should not be enlarged on bail in the Session Case No. 66 of 2008 pending before the learned Session Judge Court, Barguna corresponding to Barguna P.S. Case No. 24 dated 13.12.2007 under sections 302 and 34 of the Penal Code arising out of G.R. Case No. 528/2007, and upon hearing both parties, perusing the cause shown, if any, make the Rule absolute and pass such other or further order or orders as to your lordships may deem fit ad proper.</p>

<p><b>AND </b></p>

<p>Pending hearing of the Rule, the Accused-Petitioner may be enlarged on ad-interim bail in the instant case.</p>

<p> And for this act of kindness the petitioner as in duty bound shall ever pray. </p>

<h4 align=”center”> </h4>

<h4 align=”center”>A F F I D A V I T</h4>

<p>I, Z, son of Y Khan, of Village- Uttar Itbaria, P.S. Barguna, Barguna aged about 40 years by faith Muslim, by profession Bank officer, nationality Bangladeshi by birth, do hereby solemnly affirm and say as follows:-</p>

<p>01. That I am the Tadbirkar of the Accused-Petitioner and as such I am fully acquainted with the facts and circumstances of the case and competent to swear this affidavit.</p>

<p>02. That the statements made in paragraph Nos. 1 to 16 hereinabove are true to my knowledge and matters of record, which I verily believe to be true and the rests are submission before this Hon’ble Court. </p>

<p>Prepared in my office</p>

<p>___________________________ </p>

<p><b>(……………………………………..) </b> <b>DEPONENT</b></p>

<h3>Advocate</h3>

<p>………………….. Dhaka. The deponent is known to me and identified by me.</p>

<p>Solemnly affirmed before me by </p>

<p>the said ___________________ at </p>

<p>the Supreme Court premises, Dhaka </p>

<p>on this the 19<sup>th</sup> day of March, </p>

<p>2009 at 11A.M.</p>

<p><b> (…………………………………….) </b></p>

<p>Advocate</p>

<p><b>COMMISSIONER OF AFFIDAVITS</b></p>

<p><b>SUPREME COURT OF BANGLADESH</b></p>

<p><b>HIGH COURT DIVISION, DHAKA.</b></p>

<h1 align=”center”>NOTICE</h1>

<h1>DISTRICT: BARGUNA</h1>

<p><b>IN THE SUPREME COURT OF BANGLADESH</b></p>

<p><b>HIGH COURT DIVISION</b></p>

<p><b>(CRIMINAL REVISIONAL JURISDICTION)</b></p>

<p><b>CRIMINAL MIS. CASE NO. OF 2009.</b></p>

<p><b>IN THE MATTER OF:</b></p>

<p>Md. X Khan</p>

<p>…. <b>ACCUSED-PETITIONER</b></p>

<p><b> (IN JAIL HAJOT)</b></p>

<p> -<b>VERSUS</b>-</p>

<p>The State</p>

<p><b>———–OPPOSITE PARTY </b></p>

<p>To,</p>

<p>The Attorney General </p>

<p>Government of the Peoples’ Republic of Bangladesh. </p>

<p>Dear Sir,</p>

<p>Please take notice that an application for bail under Section 498 of the Code of Criminal Procedure (copy enclosed herewith) will be filed and moved before this Hon’ble Court. </p>

<p>Yours faithfully.</p>

<p>________________</p>

<p>Advocate</p>

<p>For the Petitioner.</p>