Bazlus Samad Adnan and another Vs. The State, 2018(1) LNJ 241

Case No: Criminal Miscellaneous Case No. 1630 of 2014

Judge: Syed Md. Ziaul Karim, J.

Court: High Court Division,

Advocate: Mr. Yusuf Hossain Humayun, Senior Advocate, Mr. Mamtajuddin Fakir, Additional Attorney General,

Citation: 2018(1) LNJ 241

Case Year: 2014

Appellant: Bazlus Samad Adnan and another

Respondent: The State

Subject: Code of Criminal Procedure

Delivery Date: 2018-06-03

HIGH COURT DIVISION

(CRIMINAL MISCELLANEOUS JURISDICTION)

Syed Md. Ziaul Karim, J

 

Judgment on

23.07.2014

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Bazlus Samad Adnan and another

. . .Accused-petitioners

-Versus-

The State

. . .Opposite party

Code of Criminal Procedure (V of 1898)

Section 167(5)

It is pertinent to point out that the case is pending for investigation for about fifteen months. Section 167 of the Code of Criminal Procedure (briefly as the Code) provides the procedure when investigation cannot be completed in twenty four hours. The relevant provisions regarding granting of bail, when the investigation is not concluded within the stipulated period. Section 167(5) provides that if the investigation is not concluded within one hundred and twenty days from the date of receipt of the information relating to the commission of the offence or the order of the Magistrate for such investigation. (a) the Magistrate empowered to take cognizance of such offence or making the order for investigation may, if the offence to which the investigation relates is not punishable with death, imprisonment for life or imprisonment exceeding ten years, release the accused on bail to the satisfaction of such Magistrate; and (b) the Court of Session may, if the offence to which the investigation relates is punishable with death, imprisonment for life or imprisonment exceeding ten years, release the accused on bail to the satisfaction of such Court; provided that if an accused is not released on bail under this sub-section, the Magistrate or, as the case may be, the Court of Session shall record the reasons for it; It find that no reason regarding applicability of the provisions of Section 167(5) of the Code has been assigned by the learned Judge in refusing bail of the petitioners. So, such findings of the learned Judge cannot be sustained in the eye of law.  Therefore, in view of the Provisions of section 167(5) of the Code the petitioners may be released on bail.     . . . (11 and 13)

Code of Criminal Procedure (V of 1898)

Section 498

According to the prosecution it is not the prima facie case against the petitioners but reasonable grounds for believing that they have been guilty which prohibits granting of bail. The onus is on the prosecution to disclose those reasonable grounds but the prosecution utterly failed to discharge its onus. I have carefully examined the data available in the case to find out whether reasonable ground exists to connect with the crime alleged, but I failed to discover any such ground which prohibits granting of bail of the petitioners. Both the petitioners were arrested in this case on 27-04-2013, about fifteen months they have been languishing in the custody for the allegations of committing offences which are absolutely bailable. We should bear in mind that it has been settled by our Apex Court that bail should not be withheld as a punishment. In all these aforesaid situations, I feel that the petitioners are entitled to be enlarged on bail. Thus the Rule having merit succeeds.         . . . (14 and 16)

Mr. Yusuf Hossain Humayun, Senior Advocate with

Mr. S.M. Rezaul Karim, Advocate and

Mr. M. Aminuddin, Advocate

…. For the accused-petitioners

Mr. Mamtajuddin Fakir, Additional Attorney General with

Mrs. Sakila Rowshan, D.A.G.

Mrs. Sharmina Haque, A.A.G. and

Mr.  Md. Shorowardi, A.A.G..

. . . For the State-opposite party.

JUDGMENT

Syed Md. Ziaul Karim, J: Supplementary Affidavit dated 21-07-2014 filed to-day do form part of the main petition.

2.            By this Rule, the petitioners seek bail.

3.            At the time of issuance of Rule both the petitioners were enlarged on ad-interim bail for a period of six months but due to some procedural facts they could not be released in time. Eventually the Miscellaneous case has been referred by the Hon’ble Appellate Division before this Court for disposal.

4.            The prosecution case put in a nutshell are that on 25-04-2013 at 00.45 hrs. S.I. Wali Asraf Khan of Savar Model Police Station, Dhaka as informant lodged a first information report( briefly as FIR) against the petitioner no.1 as accused no.6 along with five others alleging that accused nos.1 and 2 are the owners of " RANA PLAZA" a nine storied building situated at Savar Bazar Bus stand, of which 3rd -9th floors were being used as Garment factories of the other accused as tenants, Aminul Islam( accused no.3) as tenant of 3rd–4th floors operated his garment factories named New Wave Button and New Wave. Anisuzzaman (accused no.5) and David Mayor (accused no.4) as tenants of 5th – 6th floors operated their garment factories named Fantom Tec. Ltd. and Fantom Apparels Ltd. The petitioner no.1(accused no.6) as tenant of 7th to 8th  floor operated his garment factories named Ether-Tex and New Wave Style. About 3000 workers and 200 staffs were employed in such factories. On 23-04-2013 at 9:30 a.m. some cracks were visible at different levels of the building. On panic some workers hurriedly got down and became wounded. In spite of such cracks on the following day i.e. on 24-04-2013, the owners of the garments and their officers compelled the workers to resume their duties. Consequently at 08.45 hrs. the total building collapsed and 203 workers/stuffs died at the spot and about 1000 were wounded. Having had heard the incident different law enforcers and NGO workers happened at the scene for their rescue. Some wounded were also shifted to local hospitals and clinics for treatment. By such incident total loss for Tk. Thirty five crore have been incurred. With these allegations the informant lodged the FIR which was recorded as Savar Police Station Case no.55 dated 25-04-2013 corresponding to G.R. no. 257 of 2013 under sections 337, 338, 304A, 427, 34 of the Penal Code(Later sections 323, 325, 326, 307, 304 of the Penal Code were added).

5.            The case is still pending for investigation. On 27-04-2013, both the petitioners were arrested in this case. Later they were taken to Police remand for consecutive two occasions.

6.            Having been repeated unsuccessful for bail in the Courts below, the petitioners moved this application and obtained the present Rule.

7.            The learned Advocates appearing for the petitioners support the Rule and submit that the petitioners were arrested on 27-04-2013 since then they are in custody and the case is still pending for investigation. They add that there is no specific allegation against the petitioner no.1 and the name of the petitioner no.2 does not appear in the FIR. By furnishing supplementary affidavit they submit that some of the suspected accused along with one FIR named accused( Abdul Khaleq) were enlarged on ad-interim bail, and the prayer for bail of the petitioners stand on the same footing with that of the other co-accused who were enlarged on bail. They lastly submit that under the aforesaid circumstances the petitioners may be enlarged on bail.

8.            The learned Additional Attorney General appearing on behalf of the State opposes the Rule and submits that it is a very sensational case. He adds that name and fame of Bangladesh depends on the activities of the petitioners. He lastly submits that the petitioner no.1 was the owner of a garment and he had the responsibility for safety and security of the workers but he failed to do so. Therefore, their bail should not be granted at this stage.

9.            In order to appreciate their submissions, I have gone through the record and given my anxious consideration to their submissions.

10.        On exploration of the materials on record, at a very outset I find that the offences as alleged as against the petitioners are under sections 337, 338, 304A, 427, 34 of the Penal Code. Although later sections 323, 325, 326, 307, 304 of the Penal Code were incorporated by the investigating authorities. The case is still pending for investigation and the applicability of the subsequent added sections have not yet been determined. So, till now I find that the FIR discloses the offences of former sections which are absolutely bailable offence. In bailable offence the person accused has the indefeasible right to grant of bail subject to satisfactory sureties being offered if necessary. With this regard reliance is being placed in the case of Meah Mahmud Ali Qasuri vs. The State 15 DLR 429 (SC).

11.        It is pertinent to point out that the case is pending for investigation for about fifteen months. Section 167 of the Code of Criminal Procedure (briefly as the Code) provides the procedure when investigation cannot be completed in twenty four hours. The relevant provisions regarding granting of bail, when the investigation is not concluded within the stipulated period, reads as hereunder:

Section 167(5) If the investigation is not concluded within one hundred and twenty days from the date of receipt of the information relating to the commission of the offence or the order of the Magistrate for such investigation.

(a)         the Magistrate empowered to take cognizance of such offence or making the order for investigation may, if the offence to which the investigation relates is not punishable with death, imprisonment for life or imprisonment exceeding ten years, release the accused on bail to the satisfaction of such Magistrate; and

(b)         the Court of Session may, if the offence to which the investigation relates is punishable with death, imprisonment for life or imprisonment exceeding ten years, release the accused on bail to the satisfaction of such Court;

Provided that if an accused is not released on bail under this sub-section, the Magistrate or, as the case may be, the Court of Session shall record the reasons for it;

12.        It appears that the learned Judge consecutively refused the prayer for bail of the petitioners on the following observations :

Cq¡ p¡i¡l l¡e¡ fÓ¡S¡ ¢h¢ôw d­p q¡S¡l q¡S¡l N¡­Ñj¾Vp LjÑ£l fË¡eq¡¢el OVe¡l HL¢V Q¡’mÉLl j¡jm¡z HC hSm¤p p¡j¡c A¡ce¡e l¡e¡ fÓ¡S¡l HL¢V N¡­jѾVp Hl j¡¢mL Hhw HC Bp¡j£l fËaÉr ®k¡Np¡S­p nË¢jL­cl ¢h¢iæ iui£¢a fËcnÑe L¢lu¡ L¡­S ®k¡Nc¡­e h¡dÉ L¢lu¡­Re h¢mu¡ cywjk fË¢a­hce qC­a ®cM¡ k¡uz

13.        Surprisingly, I find that no reason regarding applicability of the provisions of Section 167(5) of the Code has been assigned by the learned Judge in refusing bail of the petitioners. So, such findings of the learned Judge cannot be sustained in the eye of law.  Therefore, in view of the Provisions of section 167(5) of the Code the petitioners may be released on bail.

14.        According to the prosecution it is not the prima facie case against the petitioners but reasonable grounds for believing that they have been guilty which prohibits granting of bail. The onus is on the prosecution to disclose those reasonable grounds but the prosecution utterly failed to discharge its onus. I have carefully examined the data available in the case to find out whether reasonable ground exists to connect with the crime alleged, but I failed to discover any such ground which prohibits granting of bail of the petitioners.

15.        Moreso, although the name of the petitioner no.1 appears in the FIR but I do not find any specific overtact involving him with the lynching of unfortunate workers and causing wounds to others. In respect of petitioner no.2, I failed to discover any allegation as alleged by the prosecution against him, even his name do not appear in the FIR. I have meticulously examined, the allegations made in FIR, Police forwarding report and the reports after remand but from there also, I failed to extract any material ground for believing that they have been guilty which prohibits granting bail. It is to be mentioned that meanwhile, FIR named accused Abdul Khaleq and other suspected accused namely Alam Mia, Md. Entemam Hossian, Mohammad Ali Khan, Md. Rokibul Hasan Rashel, Md. Abdul Hasan, Alhaj Md. Refat ullah and Sree Anil Das were enlarged on ad-interim bail by the different benches of this Division in different Miscellaneous cases. Although, subsequently the order of granting ad-interim bail of suspected accused Alam Mia was stayed by the Hon’ble  Appellate Division. Therefore, I find that there is no material to discriminate the case of the petitioners from those of the co-accused who have been enlarged on bail earlier.

16.        It is very significant to me that both the petitioners were arrested in this case on 27-04-2013, about fifteen months they are languishing in the custody for the allegations of committing offences which are absolutely bailable. We should bear in mind that it has been settled by our Apex Court that bail should not be withheld as a punishment. In all these aforesaid situations, I feel that the petitioners are entitled to be enlarged on bail. Thus the Rule having merit succeeds.

17.        In view of foregoing narrative the Rule is made absolute. Let the petitioners (1) Bazlus Samad Adnan and (2) Mahmudur Rahman Tapash, be released on bail on furnishing bail bond to the satisfaction of Chief Judicial Magistrate, Dhaka.

18.        The learned Judge of the Court below is at liberty to cancel the bail of the petitioners if they misuse the privilege of bail in any manner whatsoever.

19.        Office is directed to communicate the order at once.

Ed.



Criminal Miscellaneous Case No. 1630 of 2014