Sharif alias Md. Sharif Miah Vs. The State 2017 (1) LNJ 106

Case No: Criminal Miscellaneous Case No. 49045 of 2015

Judge: Syed Md. Ziaul Karim. J.

Court: High Court Division,

Advocate: Taimur Alam Khandker, Mr. Shahidul Islam,

Citation: 2017 (1) LNJ 106

Case Year: 2016

Appellant: Sharif alias Md. Sharif Miah

Respondent: The State

Subject: Criminal Law

Delivery Date: 2017-03-14

HIGH COURT DIVISION

(criminal miscellaneous jurisdiction)

Syed Md. Ziaul Karim, J,

And

Sheikh Md. Zakir Hossain, J.

Judgment on

11.05.2016

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Sharif alias Md. Sharif Miah

...Accused-Petitioner

Versus

The State

….Opposite Party

Code of Criminal Procedure (V of 1898)

Section 498

It is pertinent to point out that the case is still pending in the Court of Chief Judicial Magistrate and the petitioner is in custody for more than ten months. In such situation, we feel that there is no immediate prospect of commencement of trial. To that effect law has been well settled that when there is a unusual delay in holding trial and the accused is in custody for a long time knowing not when the trial will be concluded, the accused in view of uncertainty of trial may be granted bail. Moreover undue delay in holding trial due to prosecution procrastination will be a valid ground for granting bail of the accused. Therefore, we hold that bail of the petitioner is not to be withheld merely as a punishment and the requirements as to bail are merely to secure the attendance of the accused at the trial. Significantly the prosecution failed to bring any allegation that the accused will tamper or attempt to tamper with witnesses and to obstruct the course of Justice if he be released on bail. Therefore, the submissions advanced by the learned Counsel for the defence are the correct exposition of law and facts. To that end in view we are inclined to enlarge the petitioner on bail. Thus the Rule having merit succeeds.          . . . (11 and12)

Havibat Ali Vs. State, 3 BCR-170 (SC), 35 DLR-279 (SC), 7 BLD-91(AD); Reasat Ali Vs. Golam Md., 20 DLR 339 SC), Anwar Hossain Vs. State, 5 MLR-105 and Dulal Mia Vs. State, 44 DLR-209 ref.

Mr. Taimur Alam Khondaker, Advocate with

Ms. Mar-e-um Khondaker, Advocate,

. . . For the accused-petitioner.

Mr. Shahidul Islam, D.A.G. with

Mr. Md. Ensanuddin Sheikh, A.A.G. and

Mr. Abdul Khaleque Salim, A.A.G.

JUDGMENT

Syed Md. Ziaul Karim, J: Supplementary affidavit filed to-day do form part of the substantive application.

2.            By this Rule, the accused-petitioner seeks bail in a case instituted under sections 302, 34 of the Penal Code, pending in the Court of Chief Judicial Magistrate, Narayangonj.

3.            Facts in brief are that on 24-06-2014 at 23:15 hrs. Samiron Begum as informant lodged the First Information Report (briefly as FIR) with the Rupgonj Police Station against fifteen accused alleging that on 24-06-2014 at 12:10 hrs. all the FIR named accused numbering fifteen happened at the dwelling hut of the informant wherein an altercation over demanding of money errupted between the son of the informant ( Anwar Hossain) and the accused. Consequently, all the accused conjointly beaten her son Anwar. Of them, accused no. 3 Md. Sharif Mia dealt a knife blow upon the right side of the chest of the deceased Anwar Hossain and other accused also dealt identical blow upon the deceased who on the way to hospital succumbed to the injuries.

4.            The Police after investigation submitted charge sheet accusing the FIR named accused numbering fifteen including the petitioner. Out of fifteen accused eleven accused are on bail. Two accused are absconding and two other accused including the accused petitioner are in custody. The case is still pending before the Chief Judicial Magistrate, Narayangonj for securing arrest of the aforesaid absconding two accused.

5.            Having unsuccessfully approached for bail in the Court below, the petitioner preferred this application for bail and obtained the present Rule.

6.            The learned Advocate appearing for petitioner submits that the date of birth of the petitioner is 14-01-1999 and at the relevant time of occurrence he was fifteen years old. He adds that the petitioner was arrested on 12-07-2015 since then he is in custody but still the case is pending before the Chief Judicial Magistrate. There is no immediate prospect of commencement of trial. He lastly submits that the other co-accused are enjoying the privilege of bail. So the petitioner may be enlarged on bail.

7.            The Rule is opposed by the learned Deputy Attorney General.

8.            In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.

9.            On going to the materials on records it transpires that the case was instituted on 24-06-2014 and the charge-sheet was submitted on 14-09-2015 accusing fifteen accused including the petitioner. Out of which eleven accused are enjoying the privilege of bail. The case is still pending in the Court of Chief Judicial Magistrate for securing arrest of the other two absconding co-accused. So we feel that there is no immediate prospect of commencement of trial. As the other co-accused are on bail, so, there is no materials to discriminate the case of the petitioner from those of the co-accused who have been enlarged on bail by the Court below. With this regard reliance are being placed in the cases of Havibat Ali vs. State 3 BCR-170 (SC), 35 DLR-279(SC), 7 BLD-91(AD). At now we do not find any sufficient ground for believing that the petitioner committed the offence as alleged by the prosecution.

10.        We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.

a)      The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.

b)      The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.

c)      In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer.

d)      There must be clear and unequivocal proof of the corpus delicit.

e)      The hypothesis of delinquency should be consistent with all the facts proved.

         Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspite of oath is of no avail.

11.        We have meticulously examined the FIR, and other materials on record but from there also we failed to discover any material against the petitioner for believing that he has been guilty which prohibits granting bail. It is pertinent to point out that the case is still pending in the Court of Chief Judicial Magistrate and the petitioner is in custody for more than ten months. In such situation, we feel that there is no immediate prospect of commencement of trial. To that effect law has been well settled that when there is a unusual delay in holding trial and the accused is in custody for a long time knowing not when the trial will be concluded, the accused in view of uncertainty of trial may be granted bail. Moreover undue delay in holding trial due to prosecution procrastination will be a valid ground for granting bail of the accused. With this regard   reliance can be placed in the cases of Reasat Ali vs. Golam Md. 20 DLR 339 SC), Anwar Hossain vs. State 5 MLR-105 and Dulal Mia vs. State 44 DLR-209.

12.        We are to bear in mind that bail in non-bailable offence is a matter of discretion of the Court which has to be exercised with due care and caution and the facts and circumstances of the case. For an offence punishable with death or imprisonment for life, an accused charged with the same not to be released on bail if there are reasonable grounds for believing that the accused committed such an offence. Court to examine the data available in the case to find out whether reasonable grounds exist to make a nexus between the accused and the crime alleged against him. Court’s belief on the point has to rest on the accusations made in the report to the Police, the nature and credentials of the evidence, which the prosecution proposes to lead in the case and all other relevant circumstances. Onus lies on the prosecution to disclose those reasonable grounds and the Court has to examine the data available in the case. No legal or moral compulsion to keep a person in Jail merely on the allegation of commission of offences punishable with death or imprisonment for life. Ultimate conviction and incarceration of a mate conviction and incarceration of a guilty person can repair the wrong caused by mistaken relief of bail granted to him but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any  stage of the case albeit his acquittal in the long run. On further exploration of the materials on record and preponderant judicial views emerging out of the authorities referred to above we are lead to the conclusion that in all respect the prosecution failed to discharge its responsibilities Therefore, we hold that bail of the petitioner is not to be withheld merely as a punishment and the requirements as to bail are merely to secure the attendance of the accused at the trial. Significantly the prosecution failed to bring any allegation that the accused will tamper or attempt to tamper with witnesses and to obstruct the course of Justice if he be released on bail. Therefore, the submissions advanced by the learned Counsel for the defence are the correct exposition of law and facts. To that end in view we are inclined to enlarge the petitioner on bail. Thus the Rule having merit succeeds.

13.        In view of foregoing narrative, the Rule is made absolute. The petitioner Sharif alias Md. Sharif Miah, be released on bail on furnishing bail bond to the satisfaction of learned Chief Judicial Magistrate, Narayangonj.

14.        The learned Judge of the Court below is at liberty to cancel the bail of the petitioner, if he misuses the privilege of bail in any manner whatsoever.

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

Ed.



Criminal Miscellaneous Case No. 49045 of 2015